What you may not know about mediation

There is always more than one way to resolve an issue in family law, and meditation is one option couples can explore. Mediation essentially involves a voluntary, private negotiation between two parties with the involvement of a mediator, an independent, neutral third party. Mediation is often seen as a more civil, cost effective way to settle disputes without court intervention.

As we’ve mentioned in a previous article, there are several advantages to hiring a mediator. Couples can work to resolve a variety of family law issues such as support payments, the division of property, or child custody and access, and they are given complete control over any resolutions made during the mediation process.

However, it is also important to note that mediation is not appropriate for every case, and it’s not as simple of a process as some people may think. Below is some lesser known information divorcing couples should consider if they are contemplating mediation.

Some issues may not get resolved

Mediation is only effective if both parties want to work collaboratively to reach an agreement. And even then, the process can be difficult. Despite tough compromises and lengthy discussions, sometimes an agreement simply cannot be reached. Nevertheless, trying mediation first can help a couple resolve some of the less complex matters in their divorce, which can speed up the litigation process by reducing the number of issues that need to be addressed in the courtroom.

Mediation can be an emotional experience

Mediation provides divorcing spouses with a neutral place to talk and listen to each other, but it is not difficult to see how a discussion between two opposing parties could turn into a heated argument. Yelling at or making accusations about an ex won’t do anything to move negations forward, but it’s understandable if anger or sadness does temporarily interfere with the mediation process.

Each party should still hire a lawyer

Some people see mediation as an end-all, lawyer-free process. However, in most instances, those who agree to a mediated settlement will still have to hire at least one family lawyer to draft a separation or mediation agreement. Furthermore, mediators will usually recommend that both parties consult with separate lawyers before formalizing any agreement reached in mediation to ensure their legal rights are not being compromised. Mediators do not provide legal advice, and therefore cannot protect a party if they agree to something that is prejudicial.

A Memorandum of Understanding is not legally binding

A mediator will draft a Memorandum of Understanding to document what was achieved between both parties, but this document is not legally binding, meaning a court will not enforce it. If both sides are happy with what was included in the MOU, a lawyer can draft a separation agreement based on the terms and conditions outlined in that document.

There is more than one approach to mediation

It may surprise some people to learn that there is more than one model of mediation. This includes evaluative mediation, transformative mediation, and facilitative mediation. A good mediator will either use the mediation approach that best lends itself to the particular parties and issues at hand, or will use more than one approach to facilitate a positive outcome.

Do you think mediation might be appropriate for your family law matter? Contact us and we will help you make an informed decision.

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