Is Divorce Mediation Right For Your Situation?
Divorce mediation is a process whereby a mediator works with both parties to reach an agreement on all terms. A mediator is there only to keep the process structured and help each party accomplish their goals as much as possible.
The objective is to be able to have an open discussion and sharing of ideas to make progress. The mediator keeps each party in check so there is no yelling or talking over one another. Both sides are able to express their desires, and the mediator helps organize all the information and identifies the major issues.
Mediation serves as a forum for discussing all the major issues related to divorce. The ultimate goal is to come up with solutions that the two sides can agree to. This will involve each side compromising on certain issues as well. Generally, all the issues related to divorce are either classified as division of assets and debts, financial support, and parenting.
The ultimate advantage of this process is that it allows the parties a chance to resolve the issues on their own, as opposed to having a judge do it for them. This increases the likelihood that both sides will be content with the outcomes.
Mediation is also less hostile often times than litigation. This makes it a lot easier on the children as well, as opposed to having it drag on in court for months or even years. Its far more simple and straightforward, and doesnt require the need for lawyers to get involved unless desired.
Divorce mediation can be used to resolve all issues. Even if domestic violence has been a part of the relationship, mediation is still a possibility as long as the abused party agrees to it. Any concerns can be relayed to the mediator, attorney, or hearing officer.
Always keep in mind that you or the other party can withdraw from mediation at any time.
As mentioned, divorce lawyers dont have to be apart of the process. This is strictly up to each side. You can consult a divorce lawyer before mediation to get a better understanding of what to expect and advice on decision making. Lawyers can be present during the session(s) as well. When an agreement is in place, then both sides are encouraged to review the terms with a lawyer.
Mediation is not always the best route for every case, but can be ideal if both sides are more concerned about whats best for their children and want to have a good post-divorce relationship.
What Does a Family Mediator Do?
Recently, a friend called from out of town and asked me about mediation. He and his wife are getting divorced, and he was having a problem negotiating with her. While they are really not that far apart in their positions, nothing was happening because he and his wife were having difficulty communicating. Since my friend couldnt be objective, I thought he may not be the right person to start the negotiations. It is almost impossible to negotiate if one party is involved and cant see the forest for the trees. Since they were using a family mediator, I suggested that he speak to the mediator and have him negotiate. My friends response was a little perplexing; this mediator wanted the parties to negotiate between themselves, which I found difficult to understand. That brought me to the topic of this article of what does a family mediator do?
A mediator is like an ombudsman who negotiates between parties. In order to negotiate fairly and neutrally for both parties, a mediator must understand the parties needs. To make that determination, a mediator must have good listening skills, patience, tolerance, flexibility, creativity, and persistence, as well as the ability to handle conflict and be empathetic to the affected parties. While listening to the parties, the mediator must also be very careful not to project his or her opinions or values onto the parties and risk introducing issues that are not the concern of the parties themselves.
Once the mediator has helped the parties narrow the scope of the issues important to them, he or she will often meet privately with one party or the other in order to present the other partys point of view, This meeting, known as a caucus, is private so that a mediator can challenge one partys position, without diminishing it in front of the other party. The mediator might challenge the party by pointing out the weaknesses of their position, for example. Though this evaluative method is very useful to bring parties closer to an agreement, it also risks alienating the party. Often, if the mediator voices the other partys point of view too strongly, the mediator may appear to take sides. This can usually be alleviated in advance; if the mediator includes some explanation of this evaluative role at the beginning of the process, the parties will know that what the mediator does to one, he or she will do to the other equally.
The mediator, as an objective third party, is often able to identify options that the parties might not think of themselves. This creative component of a mediators role is the one most mediators enjoy. Warring parties often become so entrenched in their positions that they see agreement only as weakness. The mediator, however, can often craft solutions that can incorporate elements of compromise and gain for each party. Being able to think out of the box is, therefore, a critical skill for an effective mediator. The mediator may go back and forth between the parties in an attempt to move them closer to a consensus until a resolution is reached.
If an agreement is reached, the mediator must ensure that it is reduced to writing. That does not mean that the mediator must be the scrivener, however. When parties are represented by attorneys, the attorneys will usually write the agreement with the mediator merely ensuring that it is done. If the parties are unrepresented, then the mediator will usually draft the agreement as well. Once drafted, each party must sign the agreement, which then becomes binding on the parties and enforceable. In family mediation, the agreement is called a Marital Settlement Agreement (MSA) and will include a Parenting Plan if there are children in involved. Once signed, the MSA is presented to the judge in a final hearing (like a trial), in which the judge will incorporate the agreement into an order that can be enforced by the court.
While we are on the topic of what a mediator does, it begs the question: what does a mediator not do? Firstly, a mediator cant practice law or whatever secondary profession they have while mediating. A mediator must at all times be an unbiased and objective third party whose sole role is to facilitate the mediation process.
The mediator is there to assist the parties in reaching an agreement that they craft together. When the parties are represented, it is easy to let the attorneys answer any legal questions that arise. The harder scenario is when parties are not represented. The mediator can provide information required for the parties to make informed decisions. Even if the mediator is an attorney, however, he or she may not apply that legal information to the specific facts of the parties case and provide legal opinions. The only legal advice the lawyer/mediator may give is that the parties have a right to hire a lawyer to assist them with the mediation and the case. Similarly, if the mediator is a psychologist or therapist, and discovers that the clients or their children require counseling during the process, the mediator may suggest that the parties get counseling. Even if the mediator is a counselor, however, the mediator should not do the counseling.
Whether the mediation is a divorce, contract, foreclosure, or any other matter, the mediators role is the same. He or she must serve as an unbiased objective third party to assist the parties in resolving their disputes. In order to do so, the mediator must identify and clarify the issues for the parties, evaluate and test the parties positions, try to find creative solutions that allow each party to gain and compromise, and ensure that any agreement reached is reduced to writing. Despite whatever additional training a mediator has, the mediator may not serve in any other capacity to the clients. Though still fairly new, mediation has becomes an important tool within our legal system for resolving disputes that saves people time, money, and helps preserve relationships.
Howard Chusid, Ed.D, LMHC, NCC is a Licensed Mental Health Counselor, a National Certified Counselor, and a Board Certified Professional Counselor. He is also a Supreme Court Certified Family Mediator, Circuit Civil Mediator and a Qualified Arbitrator. Howard works with a group of caring professionals who offer a cooperative approach to divorce and other family disputes. Each professional provides the support services necessary to navigate the many complex issues people face during the confrontational times that break up creates. We can be reached at The Helping Place, LLC at 954-455-0388.
Finding the Right Mediator
After an approval to seek mediation, one will need to choose the right mediator to solve a legal stalemate. There is no laid down procedure to guarantee an effective mediator, but at least you can find a mediator who will help you through the problem. If you choose a neutral mediator and the mediation feels more like a settlement conference which fails, then the costs of litigation are resumed.
As an alternative to the resumption of court cases, try a new mediator. However since mediation has an upper hand over litigation its always better to settle for an efficient mediator to facilitate good turnover. First, you must research on different qualified mediation services and the care they provide. Also search the web to identify potential mediators. Looking at their backgrounds, skills and approaches to mediation to help a lot. The recommendations from trusted sources, people are too good. Finding the right type of mediator, a therapist, lawyer, and offers a slightly different approach.
A lawyer-mediator will be able to help you focus on the legal issues surrounding the dispute, and help you structure a winning strategy, while a therapist is going to flourish in social struggles. Then you should be keen on the mediators characteristics These ranges from well-trained, committed to the field of mediation, pursue excellence dedicated to the mediation of the community to keep abreast of changes in the law, and be a reflective practitioner and always think and try to improve it. The code of ethics states that the mediator cannot act as co-advisor, therapist or a judge. Each type of mediation has its own style and not all fields are created equal. You should resist choosing a mediator basing on the mere CV title or the accumulation of academic degrees.
Most unresolved Business conflicts are mainly due to speculation of mistrust. There are always the privileged parties after the trial, while other parties wallow in sorrow after most civil court cases. The parties to a well publicized cases often describe the process as very fair and greater appreciation of the report of the result. Lawyers want intelligent, cost-effective and results-oriented reputation. Satisfied customers of a right mediator always make good referrals. When a mediator is identified, he or she will be contacted to answer questions to determine suitability for the cause. He she should be able to answer general questions such as; does he she understand society and history of helping parts of design solutions which will bring partners into the discussion How did he she resolve a deadlock another case How could he or she obtain other case under control Although it is not necessary for a trained mediator to gain experience in the business industry or subject concerned, it can be very useful when they do. You should always listen to the answers carefully.
Always get satisfied with the mediators first or second interaction before choosing them. It would be worthwhile if you choose another mediator than to stick to one who didnt impress you and may deliver negative results. With these basic tips you will definitely make a killing out of the mediation process.