What is Mediation?
Mediation is a method for resolving disputes collaboratively. In mediation, people work together to identify, discuss and jointly resolve the issues in dispute. Mediating offers significant advantages over litigation and other processes. With mediation you can:
• Save time and money
• Preserve valued personal (or business) relationships
• Reduce stress and worry
Save Time and Money
Mediation puts you in control of the process, which helps you control costs. For example, you decide who will participate in the mediation, whether attorneys or other experts will be present, what will be the length and frequency of mediation sessions, etc. Many mediations can be scheduled and completed within weeks of being initiated.
Preserve Valued Relationships
Resolving a dispute doesn't have to mean the end of an important personal or business relationship. The mediation process encourages effective communication by:
• Affording each person/party/"litigant" the opportunities to have concerns addressed
• Enhancing opportunities to find common ground
• Promoting clear communication
• Preventing misunderstandings
• Exploring ways for both sides to "win"
Reduce Stress and Worry
One of the most frustrating and painful aspects of litigation is the feeling that someone else controls your destiny. In mediation, you are directly involved in all decision-making so you need not worry that important decisions about your future will be imposed upon you.
How Mediation Works
In mediation you work together with the other person to resolve your dispute without a judge or jury. The mediator guides you through a process of identifying, discussing, and resolving the issues raised by the participants. You and the other person make all the decisions, including what issues are discussed, what additional information may be needed, and how each issue is resolved with the help of the trained facilitator. The mediator assists you but does not substitute his/her judgment for yours.
Mediation Can Work For You
Here are some of the many disputes that can be mediated:
• Divorce, alimony, division of property
• Child custody and support
• Business breakups and management issues
• Employer-employee disputes
• Modification and interpretation of contracts
• Breach of contract
• Neighborhood disputes
• Disputes between estate heirs
• Landlord-tenant disputes
• Workplace discrimination issues
Need Help Getting Your Spouse to the Negotiating Table?
by Eileen Coen
by Eileen Coen
I can’t tell you how many times I receive phone calls from people who want to have a cooperative divorce, but don’t know how to get their spouse to participate in mediation. Maybe the spouse is too angry or hurt or skeptical to try mediation. Maybe they already have a lawyer who advises against it. Here’s some advice I give these folks.
First, see if you can find out why your spouse objects to mediation. The more you understand their concerns, the better you can address them. Here are some common objections as well as some information that may help bring your spouse to the table.
I don’t want the divorce, so why should I mediate?
The fact is that it’s possible to obtain a divorce even if one spouse wants to stay married. If you’re not the one who wants the divorce, mediation will give you a chance to process the impact of separating, gain clarity about your needs going forward and give you some control over the outcome. Separation is the first step in a no-fault divorce. Developing a mutual plan for how to handle expenses and children, even temporarily, can be reassuring at a vulnerable time.
I don’t want therapy.
Mediation is not marriage counseling. Mediation is a non-adversarial process for addressing the financial, parenting and legal issues of your divorce. Your mediator may coach you in how to better communicate with one another in order to help you maximize the potential for mutual problem-solving. Good communication also helps pave the way for successful co-parenting (and helps in other areas of life too).
We can barely talk to one another let alone reach agreements.
If people going through divorce could talk constructively, then there wouldn’t be divorce lawyers and mediators! In my experience, however, people are able to talk and even reach agreements with help. A skilled mediator can help you avoid “positional bargaining,” which leads to impasse, and instead, uncover mutual interests and ways to meet both of your needs and those of your children.
I need someone who will protect my rights.
An experienced mediator will keep the playing field level and help a spouse who feels intimidated to gain confidence through information and knowledge. Many people also choose to consult with attorneys and get legal advice throughout the process. While less common, both spouses may agree to have attorneys present in mediation. You and your spouse will be able to weigh legal advice along with all the other information that will help you meet the needs of all family members.
Our finances are too complex for mediation.
A skilled mediator has the knowledge base to help most people clarify and understand their financial situation. A professional divorce mediator will be proficient at using financial divorce software that can help you explore ways to achieve an equitable division of assets and consider tax consequences. Regardless of whether you’re working with a mediator or a lawyer, there are times when it is helpful to bring additional professionals into the process, such as a business valuation expert, a CPA or a financial adviser.
I’m afraid that you’ll hide assets.
Whether you’re using litigation or mediation, there are no guarantees that your spouse will disclose all assets. You may choose to hire a forensic accountant, but even that won’t guarantee full disclosure. If it is later discovered that one spouse was hiding assets, the innocent spouse can pursue legal action for fraud.
My lawyer told me not to.
These days, most lawyers recognize the value of mediation and recommend it to their clients. Courts in many jurisdictions even require mediation before they’ll hear a case. So if your spouse’s lawyer is advising him or her not to mediate, there is a good chance you are in for a long, painful and very expensive process. Preparing a case for litigation actually escalates and entrenches conflict. Litigated divorces can take 3 or more years, consume the family’s wealth and put enormous strain on all of the family relationships. Invite your spouse to ask his or her lawyer this question: “Will you guarantee in writing that I will get a better outcome with you than I would in mediation?” I’ve never seen a lawyer agree to do that.
If your spouse doesn’t feel ready to begin mediating a divorce settlement, offer to proceed at his or her pace, not at yours. If your spouse is concerned about your selection of a mediator, invite him or her to choose one. If your spouse doesn’t want to mediate simply because the idea is yours, they may be open to information from a neutral source. Here are some of the excellent resources out there:
The Truth About Children and Divorce, by Bob Emery
Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life, by Diana Mercer, Katie Jane Wennechuk
The Huffington Post Divorce Blogs
Eileen L. Coen, J.D. Mediator