Divorce mediation, is that where you try to keep a couple together?" "Divorce mediation...that must get horribly intense." "Mediation. Hmm...Is that like arbitration?"

As a mediator concentrating in divorce and other family conflicts, I am often asked these questions. In short, my answers are: 1. No, that is called marriage counseling; 2. Yes, but it is enormously rewarding; 3. No. In arbitration, you submit your dispute to a third person who renders a legally-binding decision. In mediation, the parties themselves retain complete control over the outcome.

That famous trial lawyer, Abraham Lincoln, once urged his fellow citizens to "discourage litigation" because "the nominal winner is often the real loser-in fees, expenses, and waste of time." Indeed, litigation can often seem like an endless series of nasty skirmishes, leaving the parties not only economically spent, but emotionally depleted as well. Litigants often feel as if they never really had a chance to "tell their story," and resentful of their attorney's need to demonize their adversary. This "demonizing" is particularly disturbing when the adversary is a spouse, and even more so when children are involved. Mediation holds the promise of making divorce no more traumatic for the children than it has to be, nor less dignified to the participants than it can be. In ever-increasing numbers, individuals, families, businesses and community groups are turning to mediation as a saner, more humane, and more economical method of resolving disputes. Once referred to as the "quiet revolution," it has truly arrived.

Simply stated, mediation is "assisted negotiation." The mediator is impartial - with no vested interest in any particular outcome but committed to ensuring that the process by which each participant Finds his or her way to an agreement is a fair one. A skilled mediator helps to create an atmosphere in which the participants can communicate more effectively and better understand both their own and the other's point of view. The mediator never imposes a solution upon the parties nor presumes to advise them what they "should" do; he or she helps the parties to identify and articulate all concerns and interests that may need to be addressed and to acquire all the information needed to reach a circumspect decision.

A more apt term for "divorce mediation" would be "separation agreement" mediation. When a couple is in the process of divorce, they need to make important decisions about, among other things, future parenting arrangements, child support, property distribution, and spousal maintenance. The decisions a couple ultimately makes about these issues are memorialized by the attorney mediator in the "Separation Agreement" or "Stipulation of Settlement." (If the mediator is a mental health professional, he or she may draft a "memorandum of understanding" which will then be converted by an attorney into a legal document.) When signed by the parties, it becomes a legally-binding contract. That agreement is ultimately filed in court and is incorporated in. the divorce judgment.

As a mediator, I do not act as an attorney; I give no advice to either participant. I will, however, give the parties legal information to the extent they ask for it. That might include the definition of marital versus separate property, statutory factors in determining property distribution and maintenance, the statutory formula used to calculate child support (of this they must be made aware). I will also alert them to tax implications of certain options they may be considering.

Choosing mediation does not mean forsaking lawyers. Although participants are typically not interested in bringing an attorney to the session itself, each may wish to consult with an attorney before or between sessions. Many couples have a strong preference not to do so until they are ready to sign the Separation Agreement. At that stage I strongly recommend that each retain independent counsel to review a preliminary draft of the agreement. Again, as with everything else in mediation, this is their decision to make.

A lawyer is just one of a number of professionals a mediation participant may consult to help in making a prudent decision. If information is power, an imbalance of power is often remedied by consultations with attorneys, accountants, financial planners, child psychologists or anyone else who might help clarify important issues. In the mediation session itself, the participants and the mediator review the financial statements item by item for clarification or elaboration to ensure that both parties are fully informed.

There are times, to be sure, when the psychodynamics between divorcing spouses reflect a "balance of power" so skewed that mediation is inappropriate. Mediation requires not only the capacity to agree, but the capacity to disagree. If one party is so intimidated by the other - the archetypical example being that of the battered spouse - then there can be no negotiation in any meaningful sense of that word.

To date, more than half the states have incorporated some form of mediation in their court systems. A number of states have mandatory mediation for custody and visitation cases. While "mandatory mediation" sounds oxymoronic, all that potential litigants would be required to do under a recent New York proposal is attend an informational session about mediation. While New York ponders the fate of court-referred mediation for domestic relations cases in the wake of the recent qualified recommendation by Chief Judge Kaye's Alternative Dispute Resolution Task Force, a pilot project in Manhattan Family Court is already underway. This project was created by a coalition of the New York Society for the Prevention of Cruelty to Children, the Victim Services Agency and the Association of the Bar of the City of New York. It is staffed by volunteer lawyers trained by the Bar Association to mediate custody and visitation issues referred from family court judges.