| The address for this site is http://www.divorcelawinfo.com/ |
|
What is "mediation"?
What is family mediation?
When can mediation be
used?
Who does family mediation?
What is
court-referred family mediation?
When
should mediation not be used?
Should I have an attorney?
Is mediation binding?
What
are the advantages of mediation over litigation?
Are communications confidential?
What happens if we can't
agree?
What is Mediation?
"Mediation" means a process in which the parties appear before an impartial
third party who has no authority to adjudicate the dispute but who, through the
application of standard mediation techniques generally accepted within the
professional mediation community, assists the parties in identifying the issues,
and then interests, exploring settlement alternatives, and fashioning the basis
of an agreement.
Back to Top
"Family mediation" means the
mediation of disputes in actions for divorce, annulment, establishment of
paternity, child custody or visitation, or child or spousal support.
Mediation programs can be very beneficial to people who are divorcing as well as
to those who have long been divorced but who find themselves in a dispute in
their post-divorce relationship. Not only can it save money but it promotes
positive dispute resolution rather than adversarial procedures. That being so,
it is well worth investigating by any couple facing divorce, a child custody
fight, a visitation dispute or other interpersonal conflict.
Mediation is a process that may help you resolve your case so you can have an
uncontested divorce. Mediation is particularly useful in situations involving
children, since it is in the interests of the children that their parents "get
along" even if they will no longer live together as husband and wife. In many
states all cases that involve contested custody or visitation matters are
referred to mandatory mediation, provided the parties are represented by an
attorney and there is no allegation of domestic abuse.
Mediation attempts to change disputes from "win-lose" to "win-win." Mediation is
a non-adversarial process of helping people come to agreement on issues like
parenting arrangements, support of children and spouses and division of real and
personal property. Mediation occurs when a neutral third-party, who has training
in dispute resolution, assists you and your spouse and helps you resolve the
issues that are causing conflict and to make cooperative, informed decisions.
Mediation can be used to resolve
the entire range of family disputes either before a divorce takes place in order
to consummate a marital settlement agreement, as well as after the divorce to
resolve continuing disputes that might arise under a marital settlement
agreement.
There are professional mediators
who earn their living by providing divorcing couples mediation services on all
issues. These professionals can be invaluable in helping couples resolve
property and support issues but also will assist with custody and visitation
disputes. Divorce attorneys and family counselors can often refer families to
professional family law mediators. Psychologists, family counselors and social
workers may also offer such services.
In many states the court shall
refer the parents or parties with a legitimate interest to a dispute resolution
evaluation session to be conducted at no cost to the parties. In assessing the
appropriateness of a referral the court shall ascertain whether there is a
history of family abuse.
Mediation should not be used when
there has been evidence of domestic violence or abuse or there is a great
difference in power between the parties. For the mediation process to work there
must be some degree of trust between the parties.
Should I have an Attorney?
It is advisable to have an attorney in a private
mediation, but it is not required. In a court-referred mediation, each party
must be represented by an attorney. Parties will be advised by the mediator to
seek advice from their attorneys and it is recommended that an attorney review
the final settlement agreement.
Back to Top
Is Mediation Binding?
Mediation is never binding by itself. Only a properly executed settlement
agreement which is the outcome of the mediation is binding.
What are the
Advantages of Mediation over Litigation?
-
Studies show that families that
mediate their differences have a substantially better after-divorce
relationship than families that litigate their differences.
-
Mediators use a variety of
negotiating techniques to help spouses reach a mutually agreeable solution to
their differences. The final decisions are the spouses', not the mediator's,
because both have had a say in how to deal with the issues that are important
to them. In divorce mediation, the couple controls how and when decisions get
made, rather than attorneys and judges.
-
Mediation is far less
expensive. It can save a divorcing couple a lot of money. As you will see from
the brief description of contested divorces below, adversarial trials get very
expensive, what with the cost of attorneys, expert witnesses and time taken
away from more positive pursuits. If you can successfully resolve all of the
issues in your case, ranging from property division, to support, to custody,
you will be many dollars ahead.
-
Mediation, is not free. Hourly
rates for services that charge are often based on a sliding scale, ranging
from $40 to $150. By comparison, fees for divorce lawyers range from $100 per
hour to more than $200 per hour for each spouse, depending on the
section of the country in which you live. [During the experimental stage of
this program there is no charge for the cost of mediation or for
administrative costs for parties participating in this program].
-
Mediation is faster. In a
traditional court setting, trials can stretch for many months or even into
years.
Is Mediation Confidential?
One of the advantages of mediation is that it is confidential. The emotional and
perhaps embarrassing issues that are raised in divorce and child custody
difficulties will be kept private, as opposed to a trial where all of the
proceedings are part of the public record. They are also confidential,
meaning that the process doesn't become part of the public record as does a
court tried divorce case. This is especially important when the mediation
concerns children. The adversarial nature of a divorce trial can severely strain
the ability of parents to communicate with each other and their children.
Dealing with custody, visitation and child support in mediation can often short
circuit much of the bitterness and support positive family interaction. This can
really help the children who usually want a close bond with both their mother
and father.
What Happens if We Can't Agree?
If you don't reach agreement, you can still go to court. You do not give up your
right to litigate your dispute, although it will end up costing you thousands
more in legal fees, and hours of frustration as you lose control of your dispute
by giving it back to the judicial system. What has occurred in mediation is
confidential and is not admissible in court or through discovery, so you have
the luxury of starting fresh as if the mediation had never taken place. In a
court-ordered mediation, the case will return to the court for a decision by the
master or judge if the two parties cannot come to an agreement.
|
