Frequently Asked Questions About Mediation

Mediation offers a sane alternative to the traditional adversary legal system. It is a real option for you to create a fair, workable solution with the other party in your conflict. The parties themselves are more intimately aware of the issues and people involved, and more able to clearly communicate what each needs to feel heard, acknowledged, and resolved.

Q.  What is mediation?

A confidential process in which a neutral professional mediator helps the parties to a dispute reach a mutually acceptable resolution of their issues. The mediator does not take sides or make decisions, but assists you in sharing information, identifying goals, and discussing options. Mediation is sometimes described as facilitated or assisted negotiation.  

Q.  What are the advantages of mediation?

(a) Privacy:  Parties settle their issues without having to “air their dirty laundry” in public.
(b) Voluntary:  You can opt out at any point if the process is not working.
(c) Speed: Litigating a contested divorce can take a year or more. Motivated parties can complete mediation in 10-15 hours of meetings spread over a few weeks.
(d) Quality: With help, the parties – especially family members – are better positioned to develop a creative and mutually fair result than a stranger in a black robe. Parties also tend to more faithfully abide by mediated agreements that they have created than solutions imposed by a judge.
(e) Preserving Relationships: When a party speaks directly to the other person in the dispute, they can engage in a conversation that can not only resolve the problem at hand, but can help preserve or rebuild the relationship.
(f) Cost Savings: A successful mediation is significantly less expensive than a litigated dissolution.  For example, divorcing couples could easily save 80-90% compared to a litigated divorce.
(g) Less Wear & Tear: Compared with the alternative of court, mediation can minimize stress and pain for the participants and their children.

Q.  What does the mediator do for the parties?

A trained mediator can assist the parties in:

* separating relationship issues from substantive issues;
* identifying the specific issues needing resolution;
* identifying respective issues and interests;
* developing options for reaching agreement;
* making settlement choices using principles that make sense;
* developing a written document setting out the terms of the parties’ agreement.

Q.  Can a mediator force a settlement?

No. Unlike a judge or an arbitrator, a mediator does not decide what is right or wrong, and does not force anyone to do anything. The parties “own” their dispute and retain complete decision-making control. One of mediation’s great strengths is that it is 100% voluntary. Participants stay with the process only if it offers them more benefits than the alternatives.

Q.  Do lawyers get involved in mediation?  

Some parties choose to bring their lawyers to meditation sessions, but most do not.  However, it is always a good idea to retain an attorney to obtain independent legal advice. Your own lawyer can help you decide what sort of settlement you want to seek in mediation. An attorney who mediates can only provide general legal information to both parties, not separate legal advice to either.

Q.  Does divorce mediation give the same results as litigation?

Better. Spouses with children can lessen conflict and focus on what their children need.  Kids are not hurt by a divorce nearly as much as they are by having their parents in conflict. A “peaceful” dissolution allows the adults to work together to restructure their family so they can raise the children cooperatively. They can see themselves as “co-parents” rather than “ex-es”.

Q.  How much does mediation cost? 

This varies depending on how long the parties take to reach agreement, but the cost is almost always far less than having the same issue resolved by lawyers in court. Depending on the issue and how much work the parties are willing to do on their own, a typical couple could expect to spend between $1,000 and $2,000 to reach a compete agreement in mediation. It would not be unusual for a couple to spend $20,000 or more to fully litigate their issues in court.

Q.  At what stage does mediation take place? 

Mediation can take place whenever the parties are ready to talk directly, even long after litigation is underway. Generally, it is better to begin earlier in the dispute. However, mediation is often used to resolve disputes even while litigation is well under way, or even right before a scheduled trial date.

Q.  Is mediation the same as counseling?

No. Mediation is not counseling, therapy, or legal advice. The mediator does not advocate for one party or for any particular solution. Mediation focuses primarily on developing solutions for the future, not in fixing blame for the past. Mediation does not replace the need for, or the benefits of, legal advice or counseling.

Q.  What if I don’t trust my spouse or we can’t agree on anything?

At the time of divorce, many spouses distrust each other and find it hard to believe that they can agree on anything important. That’s very normal. A trained mediator helps parties to get beyond their entrenched positions, to see what really matters to them. Then an agreement can be crafted that provides each party with the assurances they need that things will be different – and better – between them in the future. Over 90% of court cases settle, usually after a lot of unnecessary expense and fighting. Mediation is there to help parties reach a mutually fair agreement faster, cheaper, and with less pain.

Q.  What if I am I intimidated or threatened by my spouse?

In families where there has been domestic violence or other control of one spouse by the other, mediation may not be appropriate. Once the process is underway, it is the mediator’s job to keep the playing field level, to ensure the process remains fair throughout, to allow both parties to really speak freely, and to get the real needs met with a deal that is fair to everyone concerned.

Q.  What if we are already divorced and still disagreeing?

Ongoing disagreement often means that the couple has either unfinished business or a new situation that is at the root of the ongoing conflict. Mediation can help the parties address their underlying interests that have not yet been met. A true settlement that meets the needs of both really can mean the end of the warfare and relief from the tremendous stress that divorced spouses with children can suffer as they fight with each other over the years.