In mediation, as opposed to being in a court room, the participants can voice their opinions and desires freely with the mediator and the spouse. The mediator concentrates on making sure that both parties are given an uninterrupted opportunity to speak requesting a restatement if anything said is unclear with the goal of making sure all parties fully understand all communication. In a court room setting, the discourse of facts, feelings and figures is highly structured and is controlled by the attorneys and judges and parties must follow the communication procedures as governed by the court.

One of the primary jobs of the mediator is to exert a calming influence on the parties with the intention of the parties sincerely considering the wants and needs of the spouse, and particularly encouraging them to place the needs and concerns of the children first.

I dislike the term “child custody”. It reminds me of prison. I prefer to focus on a ”parenting plan” which describes how and  when each spouse will participate in caring for and nurturing the children involved, if any.

While the mediator cannot give legal advice, the mediator can and will provide information about the legal issues facing divorcing couples, including the court procedures and which issues become foremost in an attempt to reach conclusions. The mediator may also refer the parties to specialist in specific areas such as business appraisals, home appraisals, accountants, and other professionals.

Participants should also be aware that all information exchanged during mediation sessions is confidential and will not be revealed in court unless the information is considered “discoverable” during the standard discovery process.

It cannot be emphasized to much that mediation and hiring a mediator is not a subsitute for engaging legal counsel and it is recommended that lawyers be hired by the parties. The lawyers can be present during the mediation if desired, but the attendance is not mandatory.

If mediation is not successful, then the parties will still have the right to their “day in court”. If the mediation is successful, then the lawyers can prepare the necessary papers based upon the Memorandum of Agreement, file the papers with the court, and the parties, in most cases, will not have to appear in court.