Mediation is an alternative to the traditional litigation or adversarial method of resolving Matrimonial and Family Law disputes.
But what is mediation? Mediation is the voluntary process in which the parties to a dispute make decisions together based on their understanding of their own views, each other’s views, and the various realities that they each face. Within the mediation model confidentiality is maintained as the mediator, acting in a non-coercive manner and while maintaining neutrality, endeavors to have the parties communicate and explore their options in a non-adversarial manner. The mediator helps both parties identify issues, clarify the various perceptions and explore potential options toward resolving the conflict. Often during the mediation process, since neither party is focused solely on winning but rather on trying to find reasonable solutions, the result is that both parties gain more than they thought possible since the process has created a larger pie to be divided between the parties than would have been possible if they were both trying to “win.” An example would be the parties realizing that if they cooperated they could use the various tax code provisions to reduce the taxes they collectively would owe resulting in more money available to them to divide or use for their families. It is important to remember that a key component of mediation is that it is voluntary. The free flow of ideas and the balancing of power within the relationships of the parties can only occur if the parties partake in the process freely knowing that either is free to stop the process at any time and is free to return to the traditional adversarial system.
How can a person use mediation? It really is available at every stage of a Matrimonial or Family Law dispute. A party can ask the court if it offers mediation services. A party can ask their attorney if they know of a mediator who could help resolve the matter or the parties can approach a mediator together seeking out his or her services.
Does the use of mediation preclude the use of lawyers for each party? The quick answer is no. While the use of mediation could result in the reduction of legal fees, mediation does not require the absence of lawyers. In fact, lawyers still play vital albeit a different role in mediation. First, any agreement produced as a result of mediation should be reviewed by the individual parties’ lawyers to assure that all issues have been addressed and that the legal rights of the parties have been protected. Second, the lawyers will play a role during the meditation process to assure that the parties understand their rights and their responsibilities as well as the law itself. This will speed up the mediation process. Of course the lawyers will also provide legal counsel and advice throughout the process.
Does mediation reduce litigation costs (both time and money)? First, the parties, by working together, will often have less need to engage in fights over smaller issues since they see the bigger picture more easily. Second, since mediation is based upon the free flow of ideas and the necessity of each party understanding the other’s position there must be a free flow of information concerning each party’s finances and other facets of their positions. Accordingly there should be fewer disputes over discovery since all the cards must be placed upon the table in mediation for the process to work. Third, there is less time and energy spent on motion practice and trying to force the other side into submission in mediation since under such circumstances the process will just not work. Fourth, and this is especially important when there are children involved, under the mediation model there is less animosity developed or stoked during the process. This should also result in less time spent on lawyers going to court to fight. A further benefit of mediation, also especially when there are children at issue, is that the parties do not spend time trying to attack the other parent, who will still be the children’s parent after the acute issues are resolved. Thus, relationships with children can more readily be preserved. Finally, since by using the mediation model the parties have control over the process the process itself tends to go quicker. However, there is no guarantee that mediation will result in less expense in any given matter. The number of issues, the contentiousness of the parties, the willingness of the parties to work, both at mediation sessions and in between all are factors which will impact on the cost of the process.
Mediation is not the be all and end all for all cases. It must be remembered that mediation is not good for all family or matrimonial matters. If animosity is too intense between the parties the mediation process will be hindered. Also, both parties must want to mediate. It is after all a voluntary process. It can however, in the right case, provide parties with an efficient means to resolve their differences with a more satisfying result for them and their children.