Mediation

What is Mediation?

mediationMediation is an informal, confidential process for resolving disputes with the assistance of a third-party neutral โ€“ a mediator. Mediation is future oriented and based upon the principle of self-determination; the participants fashion their own resolution.

What is Family Law Mediation?

Family law mediation is an alternative to the adversarial litigation process and is gentler on the relationship between divorcing spouses. Divorce mediation focuses more on the underlying emotional interests of the family, treating the process more personally than a mere legal event. It is particularly advantageous when there are children involved because, while the couple will not long be spouses together, they will always be parents of their children.

Benefits of mediation:

  1. Self-determination
    • The parties control the outcome.
    • The outcome is either a win/win, a mutually satisfactory agreement or no agreement.
  2. Often less expensive than litigation
  3. Often less time consuming than litigation
  4. Collaborative, not adversarial
    • Instead of arguing their position against the others, the parties work together to reach a solution that is satisfactory for both of their interests, and, in family law mediation, the best interests of the children.
    • The collaborative problem-solving process does less harm to the relationship than an adversarial process.
  5. Allows for more creativity in developing solutions.
    • Whereas a judge is obligated to make a legal decision, mediation enables the parties to address and resolve legal and non-legal issues.
    • Solutions devised in mediation are endless and limited only to legal and ethical boundaries.
    • A mediated agreement typically has more specificity than a court order so the parties are less likely to file petitions to modify or contempt petitions as a result of insufficient details on how to implement the court order.
  6. Mediation is confidential.
  7. Parties who participate in crafting their own agreement in mediation are likely to abide by the terms of that agreement.
  8. Mediation empowers the parties.
  9. Mediation demonstrates cooperative problem solving, modeling how the parties can constructively address future issues.
  10. Mediation is voluntary: While the court may be supportive of mediation, it cannot order the parties to settle in mediation. Therefore, any time the process is not working for either party, the mediation may be terminated and the parties’ legal rights remain intact.
  11. The parties are not bound by the rules of evidence; they can discuss whatever issues they find are important.

The Role of the Mediator

As mediator, Mary Louise Parker’s role is to create a safe, cooperative setting for the parties to discuss emotional and substantive issues and engage in collaborative problem solving. Ms. Parker will work with the parties to open lines of communication, help them gain clarity and a better understanding of their interests as well as those of the other party. As mediator she will:

  1. Actively listen to the parties’ stories;
  2. Gather information to help them clarify their issues;
  3. Facilitate their negotiations; and
  4. If decisions are reached, help to put them in writing.

If the parties have retained individual attorneys, Mediator Parker will work with them to keep them abreast of the ongoing decisions. The parties are free to consult with their attorneys prior to making any decisions. The parties may also consult experts (e.g., real estate, finance, tax, child development), as needed.

Mediator Parker works to facilitate the communication session to ensure that each person has an opportunity to express his or her perspective on the situation that brought the parties to the mediation. She does not take sides, provide legal representation or make a decision as a judge would; the parties fashion their own resolution and learn techniques for addressing future disputes in the process. In general, as mediator, Ms. Parker will guide the process and the parties will own the content.

Litigation Compared to Mediation

Litigation Mediation
The parties may be forced to go to court Mediation participation is voluntary
The court decides what information is relevant The parties can present any information they feel is important
The case is limited to the issues raised in the complaint Underlying issues may be addressed
The decision must be based on laws for legal precedent Mediation is based on self-determination
The solution is limited by legal remedies The parties decide how to resolve their problems with any solution they feel is appropriate
It becomes part of the public record Confidential
The judge determines the outcome of the case and has the power to force the parties to comply with the court’s decision The mediator cannot force an agreement upon the parties. The decision does not need to follow particular rules of law
Win/lose or lose/lose outcome; a lawsuit ends with one winner and one loser Win/win outcome or no agreement