Mediation is a conflict resolution process whereby two or more parties meet with an impartial negotiator to resolve disputes in a collaborative manner. Mediators use appropriate techniques and skills to open and improve dialogue between the parties. It is important to note that mediation is confidential. This means that no one, not even the two parties, can use what is said in mediation as evidence in court. What happens in mediation is as confidential as settlement negotiations between parties and their lawyers.

Divorce and Child Custody Mediation:

A divorce and child custody mediator is a neutral party specially trained to help couples resolve issues related to their separation and their children. The mediator facilitates communication between the parties by ensuring that each party is given an uninterrupted time to speak, asking a party to restate or explain a point when necessary, and asking questions to make communication clear. A good mediator will pay attention to power imbalances in the relationship and will use special techniques to ensure that both parties are heard and feel safe throughout the process. The mediator also provides information about the legal system, how issues may be viewed by lawyers or judges, and what alternatives there are for solving issues. When necessary, the mediator will refer the couple to third party experts for services such as property issues and other financial matters.

Advantages of using Mediation as an alternative to Litigation

Mediation allows separating and divorcing couples to take control of planning their own lives, and allows them an environment in which to make good decisions about their future. It is especially beneficial for parents, who though separating, will need to continue making joint decisions about their children well into the future. The decision-making process learned in mediation can serve as a model for future communication. Also, mediated settlements have a consistently higher compliance rate because the parties have created an agreement that works for them and their children.

Mediation is also a much more cost effective means of resolving divorce and child custody disputes. Typical divorce litigation costs can run two to ten times higher than the cost of mediation. Most attorneys require a $2,000 to $5,000 retainer and will bill the client for services in addition to the time covered by the retainer. Also, keep in mind that "cost" not only means dollars spent but the emotional cost to the parties and their children who go through litigated divorces. Litigation is especially damaging to the emotional well-being of children. This emotional cost is greatly reduced by the mediation process.

Mediation almost always takes less time than litigating divorce and child custody matters. Unless the partners have worked everything out ahead of time, hiring lawyers to handle the divorce will almost always take as long or longer than mediating, even if the lawyers are able to settle out of court.

What to expect from Mediation

The couple and the mediator meet in a series of mediation sessions, usually one and a half hours long. Most sessions are held with both parties together, however there are times when parties will be seen separately for either partial or whole sessions in order to make progress in the negotiation such as when there has been domestic violence between the parties.

1st meeting: The couple and the mediator identify the issues needed to be discussed and the order in which they will be discussed, then decide what information needs to be gathered and shared. Between the first and later sessions the couple gathers all relevant financial data, or if necessary, the opinions of experts such as appraisers or accountants, with this material treated with the same care and concern as would be the case in the adversarial process.

Further Meetings: Discussions revolve around how to compromise on the various issues in order to meet the needs of both parties and their children. The mediator assists by providing information about the court system and common ways divorce and child custody matters are resolved.

The Agreement: When an agreement has been reached on all issues, the mediator drafts the agreement for review by each of the parties and their attorneys, if any.

The complexity of the issues and ability of the individuals to be flexible as they negotiate a fair agreement determines the length of the mediation. Every case is different, but the average case usually takes at least three to four two-hour mediation sessions, spread out over at least a month or two. More complex cases can take four to six months to complete.

It is fairly rare to agree on all but one or two issues, but even if that is the case mediation is seldom wasted. An agreement can be prepared on all settled issues, and the parties can either litigate the remaining issues or take further time to think about them and come back to mediation at a later date.

The role of Attorneys in Mediation

Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent legal advice prior to and/or during the mediation process, and to have their lawyer review the agreement before it is signed. Even when the mediator is a lawyer, he/she cannot give either party legal advice.

Mediation Disclaimer

Mediation works for most divorcing couples. As long as both spouses are able to speak up for what's important to them and can behave themselves appropriately in mediation, the process can work for them. On the other hand, mediation may not offer enough protection and structure for some couples. For example, a couple with domestic violence or substance abuse issues may need to have lawyers speak for them instead of trying to negotiate directly. In addition, some spouses may prefer to assume the risks and cost of adversarial litigation in order to make a point or assert a legal right rather than compromise in a settlement.

Contact me for a consultation if you have questions regarding divorce and child custody mediation in general or would like to know if mediation might be the best option for you and your children.