In order to dissolve a marriage, a lawsuit must be filed, but it is no longer necessary to follow the traditional path of litigation to work out the terms of the divorce. Today many couples are turning to mediation to resolve their disputes and negotiate the terms of their divorce. Mediation is
a process in which an impartial third-party mediator facilitates the resolution of a dispute by promoting voluntary agreement . . . by the parties to the dispute. A mediator facilitates communications, promotes understanding, focuses the parties on their interests, and seeks creative problem solving to enable the parties to reach their own agreement.
Divorce mediation may be voluntary or court referred. Its goals are to create an equitable, legally sound, and mutually acceptable divorce agreement; avoid the expense and trauma that often accompany litigation; and minimize hostility and post-dissolution controversy. Although mediation allows parties to avoid litigation, it still works in connection with the court system. Therefore, it remains important for divorcing couples to consult an attorney in conjunction with the mediation process.
Divorce Mediation Definitions and Process
As the number of divorces has increased, divorcing couples have frequently become frustrated with the excessive costs and delays associated with an overburdened, adversarial litigation system and have sought ways to play a greater role in determining the details of their divorces. Likewise, the court system has recognized the importance of developing methods of handling disputes outside of the courtroom and court-related mediation programs have been established around the country. Almost every state requires mediation of child custody disputes and many states’ court systems provide services such as early conflict intervention, conciliation services, community dispute resolution centers, education seminars for divorcing couples, mediation, and settlement conferences. Today, mediation, either voluntary or court mandated, is the predominant form of dispute resolution for divorcing couples.
Mediation is a forum in which a neutral mediator facilitates communication between parties to promote reconciliation, understanding, and settlement. Mediation is particularly suited to divorces and other family law proceedings because there is likely to be a continuing relationship between the parties, especially if minor children are involved. Many divorcing couples find mediation allows them to avoid the high financial and emotional costs of a litigated divorce. Because settlement is generally quicker, costs are reduced. Mediation also allows couples to avoid the risks of trial, protects confidentiality, and decreases stressful conflict. Mediation may also protect the children of a marriage them from the pain of parental conflict. Because the parties work to create their own agreements, couples who mediate their divorce settlement often find greater satisfaction than those who go to trial. Moreover, the couples learn skills to help them resolve future conflicts.
While most parties find mediation is an excellent alternative to the traditional litigation approach to divorce, it may not work for everyone. It is not as effective when one party is unable to express opinions fully and without fear or when the parties refuse to compromise or mediate in good faith. Additionally, some legal commentators are concerned that mediators may be unable to handle the complex financial arrangements involved in some divorce agreements.
In many states divorce cases are referred to mediation by the court or end up in mediation on the parties’ written agreement. If the court refers a case for mediation, it notifies the parties. In most states, the parties then have an opportunity to object to mediation if there is a reasonable basis, such as family violence.
Once the decision to mediate is made, it is necessary to find a mediator. Many counties have community-based or court-annexed mediation centers. If the mediation is court-ordered, the court may appoint a mediator or allow the parties to agree to a qualified mediator. Both lawyers and non-lawyers serve as mediators. The fees charged vary from mediator to mediator and from case to case. Fees may be charged on an hourly basis or by the day or half-day. Mediators’ qualifications vary and parties should seek mediators with mediation training, experience, and specific knowledge of family law. It is also important to consider the mediator’s style and mediation philosophy.
Every mediator has his or her own method of conducting mediation and every mediation differs. In general, mediators help the parties meet, explore options, and negotiate a mutual settlement to resolve their dispute. Mediators do not determine who is right or wrong. Instead, they help the parties reach a solution on their own that works for them. The parties are not required to reach an agreement, and sometimes they do not. Generally, there is no record of the mediation session, and the only document produced is the settlement agreement. Mediation agreements are generally enforceable in the same manner as any other written contract. Mediation preparation is often limited, as there is no formal discovery. It offers the parties a chance to communicate in a confidential setting in the presence of a “neutral” third party.
Because mediators are neutral and cannot give legal advice, they will generally urge parties to meet with their own independent counsel prior to mediation. This insures divorcing parties understand their rights prior to negotiating with one another. Parties may also want to consult with an attorney during mediation or have an attorney accompany them to the mediation. This may be particularly helpful if the mediator is not an attorney. Finally parties may want to have an attorney review the legal papers drafted by the mediator to insure they are properly drafted and that the parties completely understand them. If the mediator is not an attorney, it is necessary to hire an attorney to draft the legal documents.
Frequently, mediation begins with a “general caucus” where the parties and the mediator meet in the same room. The mediator establishes the ground rules in an “agreement to mediate.” In court-mandated mediation, the court order will often contain or refer to the “rules of mediation.” One of the most important mediation rules is the requirement for confidentiality. Typically, all matters disclosed or occurring during mediation, and any record made during the procedure, are confidential and generally may not be disclosed to anyone unless the parties agree to the disclosure. Additionally, state law may require that the mediator maintain confidentiality.
After the mediator covers the rules of mediation and insures that any necessary agreements to mediate are signed, the mediator explains the mediation process. The parties or their representative may then make opening statements to identify issues and clarify perceptions. Many mediators will encourage the parties to begin a dialogue during general caucus.
If the parties are hostile or overly emotional, the mediator will separate the parties and shuttle back and forth between them in “private caucuses.” A private caucus is a conference between the mediator and one party, without the other party being present. The mediator passes offers and demands between the parties. Conversations between a party and the mediator during private caucus are confidential unless a party authorizes the mediator to disclose information to the other side.
Whether the case settles or reaches an impasse, the mediator usually meets with the parties together at the end of the session. If the case has neither settled nor reached an impasse, the mediator will likely encourage the parties to attend another mediation session. If the case does settle, the mediator will urge the parties to sign a settlement to memorialize the agreement. A written settlement agreement is a contract between the parties. If settlement is not reached the parties may decide to litigate.
With the rising number of divorces and the consequent increase in cases in family court, there has been an increase in delay, risk, expense, and stressful conflict for parties prosecuting divorces in the litigation system. Mediation is one method of relieving the court system of many cases and providing greater control and satisfaction to divorcing couples. Generally, mediation helps resolve divorces more quickly than litigation; avoids the risks of trial, protects confidentiality; and reduces costs. The parties create their own agreement and have more control over the outcome of their case. In voluntary and some court-ordered mediation, the parties are able to select a neutral third party that is an expert in the area of family law. By practicing problem solving and arriving at their own settlement, divorcing parties are more likely to adhere to their agreement, and are more able to resolve future conflicts without the involvement of the court system.
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