Q. What is mediation?
Mediation is a form of alternate dispute resolutions process in which disputing parties meet with a neutral third party, a mediator with concrete goals. The mediator will assist the parties in resolving their differences by negotiating a settlement.
Q. What Happens in Mediation?
During a mediation meeting, the parties will sit down with the mediator and explain the problem as they see it and how they think the matter could be resolved. The process is private and confidential.
The mediator acts as a neutral third party and oversees the discussion to allow each party a full opportunity to be heard in an atmosphere of cooperation and respect. The parties are encouraged to generate solutions with both parties’ interests in mind, while the mediator facilitates the process
Mediators use various techniques to generate dialogue between disputants and much depends on the mediator’s skill and training.
Q. What is the role of a trained mediator?
With the mediation process, the mediator acts as a neutral facilitator and guides the parties through the process. This means that the mediator is not acting as advocate, or judge. Rather, the mediator’s purpose is to assist the parties in identifying and clarifying the issues that must be resolved, guiding the parties to think “outside of the box” in order to find solutions. He or she will help to develop a constructive dialogue that examines the issues with a focus on the peoples’ priorities and needs.
The mediator does not decide who is right or wrong. Instead, the mediator helps the parties work out their own solutions to problems. The mediator will not force any party to accept a settlement that is not agreeable to everyone. The mediator cannot give legal advise.
Q. Will I need an attorney?
That is up to you. In most mediations, you don’t need a lawyer’s direct participation. However, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms.
At the beginning of the mediation process, each party is advised to hire independent counsel to advise and consult with throughout the mediation process. A party may have an attorney or support person accompany him or her to the mediation but a party is not required to bring someone with them.
At the end of the mediation, if the parties have settled on the terms for a separation agreement, the mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review.
Q. If we cannot communicate with each other, how will we be able to communicate through the divorce mediation process?
The divorce mediator is specifically trained to help couples with communication problems.
Q. By choosing mediation, do I give up any rights that I or my children may be entitled to?
No. Divorce mediation is an alternative to adversarial proceedings or negotiations. All issues that would normally be addressed in adversarial proceedings or negotiations (child and spousal support, parenting arrangements, division of marital assets, tax implications) are discussed by the parties. Neither party should need to relinquish any of his or her entitlements, but instead of litigating issues, you and your spouse privately work through your differences with the goal of reaching an agreement that will best serve your present and future needs.
Q. Can I withdraw from mediation if I am unhappy with the results?
Yes. In a mediation, either party can withdraw at any time. As mediation is a voluntary process, all parties must be willing participants. If you or your spouse are not happy with the progress of the mediation, either one of you can withdraw at any time.
Q. How does mediation address power imbalances between spouses?
Not all couples are suited for divorce mediation. For a mediation to be successful, both parties must make their voices heard. In situations where there are serious power imbalances between spouses, divorce mediation may not be appropriate. At the initial session as well as during the course of the mediation, the trained mediator together with the parties will assess the suitability of the couple for mediation.
Also true is that the process itself can be an empowering one and that a spouse who at first may perceive himself or herself at a disadvantage actually develops or discovers strong bargaining skills. Empowering a self-determination process could be of immense value in many relationships, organizations, and teams.
Q. Are there situations when divorce mediation is not recommended?
Divorce mediation is not appropriate for all couples.
Divorce mediation is not recommended in situations involving domestic violence. It is also not appropriate when one spouse overpowers the other or refuses to participate honestly. Divorce mediation may also be not the best choice with parties having a history of medical or mental health issues or with substance abuse.
Q. What are the benefits of divorce mediation?
The main advantage of mediation is that it keeps you and your spouse in control of your own divorce. The control is in your hands.
Through divorce mediation, you and your spouse privately work through your differences and that gives you and your spouse the opportunity to settle your disputes rationally, and collaboratively. That can make all the difference in your recovering from your divorce and moving on with your life.
Generally, this process facilitates communication, promotes cooperation, reduces tension, and makes the separation easier for the parties involved and for the children.
Divorce mediation is also a cost-effective alternative to traditional divorce litigation.
Because mediation is all about working with shared knowledge, mediation also often allows you and your spouse to work together to lower your tax bill
Q. How long does divorce mediation take?
Sessions usually last one to two hours. The number of sessions varies depending on the complexity of the issues and the needs of the parties. Successful mediations average 5 sessions. Mediation almost always takes less time than litigating a divorce
Q. How much does it cost?
The cost of mediation is economical compared to the alternatives of trial and what leads up to it. The parties are charged on an hourly basis. Mediation may take several hours, a day, or longer. The length of the process depends mainly on how flexible the parties are.
Q. Do I have to worry that what I may say during mediation may be used against me later?
In most cases, statements made during the mediation cannot be used as evidence in any subsequent trial. The purpose of confidentiality, during mediation, is to provide a setting in which the parties can discuss the issues openly, without fear that what has been said may be used against them outside of the mediation. The ability to speak openly leads to solutions and settlement.