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Mediation is a form of alternative dispute resolution where a neutral or impartial person, aka a mediator, facilitates settlement discussions between the parties. The mediator’s purpose is to focus the parties’ attention on their needs and interests and not on their rights and positions. The mediator has no authority to make a decision or impose settlements upon the parties.
In mediation, a neutral or impartial person facilitates settlement discussions between the parties in an attempt to settle the divorce case.
So if you are like a number of our clients, you might find yourself skeptical about whether mediation actually could work to resolve your case. I mean the two parties have tried to work out a case themselves to no avail and they even hired attorneys on each side and both of the attorneys do not appear to be able to settle the case. Really, how could a neutral third party that does not have any authority to render a decision actually resolve the dispute if it has failed before?
Well the surprising answer for some is - yes it can work – and it has worked many times in very difficult cases that have litigated for months and even years. So what is it about mediation that enables the parties to settle disputes that they were never able to settle themselves?
First, it is the focus of the mediation session itself. Everyone is there and everyone is focused on trying to resolve their differences. Second, it is communication. Many times parties do not fully disclose their true desires and concerns to each other and these communication walls prevent the actual resolution of their matter. An impartial mediator and the confidentiality of each session allow the neutral to find common ground and address concerns in a different and often more effective way. Third, it is immediate disclosure – addressing random concerns immediately and alleviate fears and concerns. Actually, I could go on and on about why mediation is effective, but regardless of the reason, time and time again it proves itself to be effective by the results it achieves.
Practice Pointer - How does mediation work?
How does mediation actually work? Every mediator and mediation is different so there is not an exact procedure for the process. That said, generally the process starts with all parties in a room while the mediator explains the process and hears opening statements from both sides. In family law, however, the parties often do not start in the same room given the emotions involved. Regardless, generally speaking, the mediator will split the two parties into separate rooms and listen to each side, take offers back and forth, and addresses each parties concerns. Often the process involves some reality testing by the mediator – asking questions and forcing the parties to consider risks and rewards of proceeding forward with litigation, etc. The process generally continues until some or all of the issues in the case are addressed and resolved or until the parties reach an impasse and the session is ended.
Of note, even in cases where the mediation session fails to result in a final settlement agreement on the date of mediation, its effectiveness at narrowing down the issues (and gaps between the parties) often leads to the ultimate resolution of the case at some point in the future.
Do you need an attorney to go to mediation? Technically the answer is no. That said, the mediator is an impartial party that cannot provide legal advice. Without attorneys in the process to help guide each party towards a resolution, identify the relevant (and irrelevant) issues, provide a framework for what issues need to be decided, and provide clients with projections for likely outcomes at trial regarding the various issues in the case, it would seem to be ineffective and potentially lead to very costly mistakes.