Mediation is a process where a neutral professional facilitates the communication between two parties in order to help them reach a mutually acceptable resolution of a dispute. Mediation is used in many types of legal disputes, but can be especially valuable in the context of family law, more specifically divorce. Aside from the usefulness of the process itself, there are many benefits of mediation that are often overlooked.
To begin the mediation process, the mediator and the parties will identify the issues that need to be worked out. The parties will disclose relevant financial and other information so that the mediator can help them to achieve an agreeable solution. When a mutually acceptable resolution has been reached, a settlement agreement will be drafted to reflect this. When done property, the settlement agreement is a legally-binding contract that may include many terms of the divorce, including (but not limited to) parenting plans and child custody.
One of the biggest benefits of mediation, regardless of the type of dispute being resolved, is that the mediator adopts a neutral stance and is not aligned with either party. Unlike litigation, which is adversarial, mediation allows the mediator to work with both parties to establish trust and respect in the development of settlement options, rather than one working against the other. Most people prefer to make their own decisions on complex and emotional matters rather than have a third party decide their fate. The mediator may be an attorney, but does not act as an attorney during the process (the mediator will not dispense legal advice to either party). Instead, the mediator encourages open communication between the parties and helps to ensure positive dialogue. This is extremely beneficial from both an emotional standpoint and a practical standpoint in that the parties are encouraged to reach an amicable agreement rather than an “I win, you lose” mentality.
Another benefit of mediation is that the process allows creative solutions to be reached. In litigation, the goal is for one party to “win.” However, mediation affords the parties the opportunity to have a say in addressing their unique situation and reach decisions that make sense. The mediator works with the parties to help determine what is in the best interest of both parties.
Because the mediation process is not in the court system, it provides additional valuable benefits. While it is not guaranteed, the mediation process can be quicker than litigation because it is focused on settlement from the beginning of the case and the parties dictate the pace rather than the court. Additionally, mediation can be less expensive. Again, this is not guaranteed, but certain fees associated with litigation are simply not present in mediation. These benefits, along with the non-adversarial nature of mediation, make mediation an excellent choice for the divorce process.
One of the most overlooked benefits of mediation is the ability to maintain privacy throughout the process. This is extremely important to most people because of the sensitive nature of divorce and the effect it may have on the children. The parties and the mediator agree at the beginning of the case that the mediation sessions are confidential. This frees up the parties to brainstorm options together and be more creative in their discussions.
When given the opportunity, most people prefer to make their own choices about how their matter should be resolved rather than handing over the power to make decisions to a judge. Active involvement in decision making about complex and emotional issues leads to a higher commitment to uphold the agreement.