WHAT IS MEDIATION?
Family mediation is a procedure designed to assist people who are separating, divorcing, or dealing with matters arising after divorce. This procedure is intended to allow the parties to reach an agreement between themselves.privately, confidentially and informally.
Mediation is for people who want to settle family disputes without destroying whatever is left of their fragile relationships. This may result in a settlement without extensive litigation. A neutral and impartial third party, called a mediator, will use his or her skills to assist the individuals in making their own decisions by providing information necessary to make decisions, clarifying issues, helping explore alternative solutions, and suggesting possible compromises.
Issues mediated may include custody, visitation and child support; alimony or spousal support; division of assets and liabilities; health insurance; life insurance; and the tax impacts of various alternative decisions.
GOALS OF MEDIATION
To help the parties reach their own acceptable agreement by fully exploring all choices.
To avoid the need for a court-imposed decision.
To prepare the parties to anticipate, work through, and resolve disagreements that might arise.
To reduce anxiety and the negative effects of going to court.
ADVANTAGES OF MEDIATION
Provides an opportunity for concern and cooperation between the parties.
Provides the parties with the tools to structure an agreement in their best interests.
Minimizes the potentially traumatic emotional and psychological effects of the adversarial process.
Helps with the exchange of information, ideas, and alternatives for settlement between the parties.
Provides the opportunity for a resolution which is less expensive and time-consuming than a court trial.
HOW MEDIATION WORKS
The mediation process begins either with a court order or an agreement of the parties. The court may not refer parties to mediation if there is a significant history of spouse abuse or domestic violence.
The mediator, as a neutral and objective participant, plays an active role in the mediation process by assisting individuals affected by the outcome and their attorneys in reaching a settlement.
The mediator's purpose is to help identify issues, develop bargaining proposals, and conduct negotiations with the goal of coming to a settlement that meets the family's needs. The mediator clarifies and organizes details, prompts discussion and cooperative communication, and manages conflict.
The mediator DOES NOT make any decisions for the parties but helps with the parties' own decision-making processes. After agreement has been reached, the mediator will draft a memorandum of understanding to be reviewed and approved by the parties and their attorneys.
THE ROLE OF ATTORNEYS
Mediation is not supposed to replace an attorney experienced in the area of marriage dissolution law for each party. Each party is urged to seek independent legal counsel because, although some mediators are attorneys, the mediator is not authorized to give legal advice.
The mediator's role is neutral and not a substitute for independent legal advice. The mediator does not represent either party, but focuses on helping the parties reach their own agreement. While the decisions reached in mediation are made by the parties, it is important that they be informed decisions.
Attorneys may attend mediation sessions. The parties at all times are permitted to communicate with their lawyers. If both parties are aware of their respective legal rights and have been fully informed by their own attorneys, the mediation process can be much more beneficial.
Upon completion of the mediation, the mediator will submit the memorandum of agreement to the parties' attorneys. If necessary, the attorneys will draft a settlement agreement from the terms of the memorandum, for filing with the court.
COSTS OF MEDIATION
The mediator's fee is usually quoted on an hourly basis. Both parties are encouraged to share in the expenses. When mediation is court-ordered, the fee and person responsible for payment are set by the court. Family mediation may be available through the court at minimal cost in some areas. If the parties are unable to pay, financial assistance may also be available. Mediation frequently is less expensive, both financially and emotionally, than traditional litigation.
CHOOSING A MEDIATOR
In choosing a mediator, as with any professional, the individuals should select someone with whom they can establish a good working relationship. Mediators are professionals who have gone through intensive, specialized training in the area of family mediation. You should be certain that the mediator you choose has been certified as a Family Mediator. Contact your local court administrator for further information.
The material in this pamphlet represents general legal advice. Since the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.
Rev. 4/99