Mediation

Mediation is a process by which the parties to a divorce (or some other dispute) try to resolve their disagreements outside of court with the help of a mediator. The mediator cannot force a settlement, but tries to help the parties clarify their interests and work out their own solution.

In divorce proceedings, mediators are often involved in custody and parenting time disputes. (“Parenting time” is the time the child spends with each parent.) In some jurisdictions (particularly large urban areas), courts require mediation of custody and visitation disputes. The mother and father must talk with a court-appointed mediator to try to resolve the problem before putting their case before a judge. The mediator may also talk to the children.

Court-ordered mediation is usually provided at no cost or at low cost to the parties (other than the cost of the filing fees required to initiate the court action).

Mediators can also handle property disputes and support disputes. A couple seeking mediation of disputes on financial issues probably will have to seek a private mediator, since most court-affiliated mediators deal with only custody and parenting time.

If the parties resolve their disagreements through mediation, the attorneys for one or both of the parties can still be involved in finalizing and approving the agreement. Alternatively, if the parties feel comfortable working without attorneys and if they can get the paper work right, they may draft their mediated settlement as an agreed order and take it to a judge for approval.

Most mediators are either mental health professionals or attorneys. Many mediators, particularly those associated with court mediation services, have degrees in social work or psychology. Private mediators (which the parties hire on their own) are often attorneys, although many are mental health professionals.

Mediators who are mental health professionals are not serving as therapists, and mediators who are attorneys are not serving as attorneys. They are working as professional mediators who are trying to help two (or more) people work out their differences.

Mediation often has the advantage of being cheaper and quicker than prolonged negotiations by attorneys or resolution of a case by a judge after a contested trial. A good mediator can help the parties build their problem-solving skills, which can help them avoid later disputes. Most people who settle their cases through mediation leave the process feeling better than if they had gone through a bitter court fight.

Mediation can have disadvantages--at least in certain cases. If, for example, the purpose of mediation is to settle financial issues and one party is hiding assets or income, the other party might be better off with an attorney who can vigorously investigate the matter. Mediators are usually good at exploring the parties’ needs, goals, and possible solutions, but they do not have the legal resources of an attorney to look for hidden information. A mediator, for example, cannot subpoena documents or witnesses to gather information.

Mediation might not work if one party is very passive and likely to be bulldozed by the other. In that situation, the mediated agreement might be lopsided in favor of the stronger party. A good mediator, however, will see to it that a weaker party’s needs are expressed and protected. Mediators may refuse to proceed with mediation if it looks as though one side will take improper advantage of the other.

Some legal and mental health professionals think that mediation is not appropriate if the case involves domestic violence. One concern is that mediation will give the abuser the opportunity to harm the victim again. Another concern is that victims of physical abuse are not able to adequately express and protect their own interests. However, other professionals believe that disputes in families with a history of domestic violence still can be mediated, particularly if the person who was abused does not feel significantly intimidated by the other party at the time of mediation or if the mediator is adept at making sure the abused party’s needs are explored and met.

A final potential disadvantage of mediation is that if the mediation does not succeed, the parties may have wasted time and money on mediation and still face the expense of a trial.

There are no firm, nationwide figures regarding the percentage of cases that are resolved through mediation, but studies of mediation of custody disputes in several large cities report that between 50 and 90 percent of cases settle through mediation.