In mediation, a neutral third party, i.e. mediator or two co-mediators, assists the disputing parties in finding their own mutually acceptable solution to the dispute. The parties agree to negotiated terms, if they can, making all of the decisions themselves. Mediation, like negotiation, seeks solutions whereby both sides "win" in the agreement. This could be said to empower the disputants because, unlike going to a judge, it places the responsibility for problem-solving and decision-making in their hands.

Agreements made during mediation cannot entirely replace the formal divorce decree handed down by a judge--because they cannot give a divorce--but they can determine what the decree will say about property, debts, support and custody. Nor can a mediator entirely take the place of an attorney. Mediation and legal representation are two separate roles; your lawyer cannot be your mediator due to the conflict of interests that such dual representation would create. Agreements made in a mediation session and written by the mediator must be reviewed by two different lawyers consulted separately by you and your spouse.

Even when ordered by the court, mediation is a voluntary process. As in negotiation, neither party can be forced to come to an agreement or to keep negotiating. Often it is beneficial that each party is forced to take a role in the dispute resolution rather than hiding behind an intermediary who is a committed advocate.

The Role of the Mediator

The mediator helps the parties in defining the issues at hand, gives them basic information about the legal system they areinvolved in, helps them discuss their issues in an orderly and self-disciplined manner, and encourages them to evaluate how proposed solutions would work. Mediators do not serve as advocates for either side of the dispute, nor do mediators provide legal advice. Also, the mediator is not the decision-maker. Instead, mediators facilitate orderly, purposeful and organized communication between the disputing parties.

The mediator is not a judge, financial counselor, therapist, or friend. Rather, the mediator's task is a specific one: to help the two parties come to a mutually acceptable agreement if possible.

The mediator's main tasks are to:

• Organize the process and clarify the rules
• Facilitate effective communication
• Assist in defining relevant issues and priorities
• Guide exploration of consequences
• Record agreements in a provisional writing, pending full legal advice

A mediator cannot:

• Provide legal advice
• Provide counseling, therapy, etc.
• Impose a decision on the conflicting parties. That's known as "arbitration".

Advantages of Mediation (when done right):

• Convenient
• Voluntary
• Confidential
• Helps power to be balanced and shared
• Quick, compared to litigation
• Often cost effective
• Can restore/improve existing relationships
• Parties have control of and responsibility for the outcome, unlike in court

Mediation Should Not Be Used In All Situations

Despite the fact that many cases are settled effectively through mediation, certain situations exist in which mediation would only further existing conflicts or create new ones. Such situations exist when:

• One party uses violence or physical intimidation techniques against the other
• Parties continue to withhold important information that affects what they're negotiating about
• Either party is unwilling to disclose his or her basic goals in the negotiation
• Drug or alcohol impairment or mental illness impedes a full understanding of the issues by either side
• Either party is unable to assert his or her basic needs or concerns because of fear, habits of deference, or some other impediment.

Using a Mediator As Part of Your Divorce Process:

Your attorney can help you arrange the services of a mediator. Mediation, however, is a type of dispute resolution that will take not only the services of a mediator but also the full and cooperative participation of all sides of the dispute.