Mediation & Arbitration
There is a significant trend in legal circles nowadays toward a process called alternative dispute resolution (ADR) . This rapidly growing approach includes mediation, arbitration, private judging — virtually any neutral system for moving cases toward settlement, short of conventional litigation. Many of our more-enlightened clients are choosing this tactic in preference to costly trials.
The Mechanics Of Mediation
.Mediation is a cooperative problem-solving process in which a neutral professional assists family members in clearly defining the issues that are in dispute during a marital separation or dissolution, and in reaching agreements that are in everyone’s best interests. The mediator does not take sides or make decisions for others, but instead helps participants resolve misunderstandings and communicate more clearly with one another.
Mediation is essentially a process in which the spouses themselves settle the issues in their own divorce, acting with the help of a trained mediator. Any and all issues involved in a divorce case can be the subject of mediation. Even if the process doesn’t successfully resolve all issues, at least partial agreements can be reached that help narrow the issues.
Mediation works best when both spouses have accepted and agreed that the divorce itself should occur (even if they don’t yet concur on its terms.) Likewise, both parties should have a handle on their overall financial situation and be fully informed of each other’s assets and debts, since mediation relies on full disclosure and is not an investigative or discovery tool. Lastly, both parties must still be able to communicate openly and should be on a relatively equal footing with one another in order to take full advantage of the give-and-take flexibility that is inherent in mediation.
Benefits Of Mediation
When couples participate in mediation, they:
- Maintain control over their own decision-making process. Any agreement reached in mediation is negotiated and agreed to by the couple and not imposed by a Judge or any outside authority.
- Learn improved communication skills, including the ability to negotiate further disagreements in an amicable and productive manner.
- Minimize the harmful effects of divorce on children. When the parents themselves select custody and visitation arrangements, it is easier to keep children out of the middle of conflicts.
- Generally, save both time and money. Legal and counseling fees and court costs are minimized by avoiding protracted legal battles.
- Decrease the anxiety, pressure, stress, uncertainty and anger that traditional divorce litigation places on all involved parties
- Emphasize a win/win rather than win/lose approach to conflict.
There are some situations in which mediation is not recommended. If there is a substantial power imbalance between spouses (where one is a totally dominant control freak, for example, and the other is characteristically submissive), then the playing field will probably not be level enough for mediation to be workable. Likewise, if one side (often the husband) knows absolutely everything about the parties’ assets and finances, while the other knows virtually nothing, then mediation is probably not appropriate.
If the parties are still so angry at one another that arguments and profanity rather than intelligent (or at least cordial) conversation ensues whenever they try to talk, then mediation probably isn’t the answer. Finally, if spouse abuse or domestic violence has been a factor in the relationship, then mediation is generally not appropriate.