Perhaps the best understanding of “mediation” is to think of it as “assisted negotiation.”
Mediation is a method of negotiating that involves a trained “facilitator,” the mediator. He or she is trained in this method of negotiating and should also possess legal expertise in the subject matter in dispute. Lawyers, who work daily in the realm of “conflict resolution,” are often trained and certified mediators.
One “mediation myth” is that “to mediate” or “to hire a lawyer” are mutually exclusive. Mediation does not eliminate the need to be represented by a lawyer. Family disputes usually involve multiple legally complex issues. Unrepresented parties are likely to mis-step, often with catastrophic results, if unrepresented by competent counsel. When you negotiate your family dispute, whether in a mediated setting or otherwise, you will be wise to have a lawyer’s wisdom and advice to lean upon.
The advantages of mediation often include: (1) you retain control of the outcome of your case, as opposed to leaving your life in a judge’s hands; (2) you work within a more controlled environment where emotions are less likely to sidetrack negotiations, (2) you increase your chances of earlier settlement, and (3) your legal fees may be lower, as you and your attorney devote your efforts to negotiating rather than litigating.
In many states, the family court system requires parties to attempt to resolve their disputes in the mediation setting before allowing them to proceed to trial. Ask your lawyer to describe your state’s mediation requirements and programs.
Some of the qualities central to the mediation process, include:
Voluntary – Mediation is a voluntary process. While you should participate in mediation in good faith, ie., with honest intentions to try to reach fair agreements, still, you can leave at any time for any reason, or no reason.
Collaborative – Mediation is collaborative. No mediation party can force anything on anyone. Thus, everyone is motivated to work together to solve the issues and reach best agreements.
Controlled – Mediation takes place in a controlled environment. Your safety is assured. Emotional displays and arguments are not a part of the process and are not allowed to impede negotiating progress.
Confidential - Mediation is confidential. Statutes, contracts, rules of evidence and legal privileges all assure that “what happens at mediation, stays at mediation.” Mediation discussions and all materials developed for mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement.
Informed – The mediation process, like all negotiations, should involve fully informed participants. The process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Your lawyer should attend mediation sessions with you. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.
Impartial, Neutral, Balanced and Safe – Mediation is a neutral, unbiased process. The mediator cannot favor the interests of any one party over another. Nor may a mediator favor a particular result in the mediation. Your mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
The information on this site is general in nature. Do not rely on any articles, postings or other information on these pages as legal advice. If you need legal advice about a particular matter, you should contact an attorney directly.