Step 9 – Mediation
One popular example of alternative dispute resolution—methods of resolving issues without the need to go to trial—is mediation. Mediation can be voluntarily agreed to by the parties. Commonly, however, mediation is ordered by the court to help assist the parties in reaching a timely and amicable resolution to their case. Court-ordered mediation generally happens after a period of more informal negotiations between the parties directly has failed. A common time for the court to set a date or deadline for mediation is at the status conference. Mediation can occur with just the parties attending, along with a neutral court approved mediator, or it can also involve the parties as well as their attorneys. Mediation can be facilitative or evaluative in nature, or any combination of the two.
At first glance, facilitative mediation may seem like couples counseling. This is because the first goal in this type of mediation is breaking down barriers to communication, which is generally done through venting frustrations. The goal is not to help the couple see eye-to-eye on the marriage, but instead to be able to have level-headed discussions about their roles as parents moving forward, or about the financial issues that will face both ahead. Facilitative mediation, however, is more often used to address child custody issues. However, it can be used to address issues related to property division and child support as well.
When attending facilitative mediation, spouses can expect to lead the face-to-face conversations with the other spouse. The mediator will generally take a passive approach, allowing the couple to discuss issues with minimal guidance. This is done in an effort to uncover points of contention and agreement. Rather than simply go down a checklist-type agenda, which would likely lead to disagreements on various points simply for the sake of disagreeing. Simply put, the mediator attempts to let the couple lead the way. As such, neither party should expect much support or assistance from the mediator in arguing a point with the other, as this is not the role nor with the job description of a mediator in a facilitative mediation. Even when a point of contention is found, the mediator will continue to take a very passive approach, trying to let the parties work out a solution they can each live with.
The other type of mediation is evaluative. This tends to mirror a court-type setting, with the mediator acting in a more traditional “judge like” role. This includes giving opinions about each side’s position, including the strengths and weaknesses of their respective cases. To give such opinions, the mediator is naturally required to be very familiar with the scope of family law, and how judges typically address disputes with this area of law. This means most mediators are attorneys, former judges, or trained professionals. Additionally, this type of mediation is generally conducted in “caucuses,” as opposed to joint meetings, meaning each spouse will be in a separate room while the mediator alternates between the two. This helps to keep emotions minimalized, as the parties won’t be pleading his or her case directly to one another. Because of the nature of evaluative mediation, it is often most useful for property division and support obligations.
This type of mediation will generally begin with the mediator asking each side to explain what he or she wants, and why they believe that is fair. The mediator will then point out the strengths and weaknesses of that position. The mediator will continue to go back and forth between the parties in caucuses, communicating points that each makes and offering advice on if the counterpoints are strong or weak. The goal is to get both sides to see how the arguments are likely to play out at trial, and further give the parties a chance to meet in the middle on these issues whenever possible.
Mediation is a method of working out differences and attempting to see the other spouse’s point of view on key issues. Mediation will not always produce binding results, however. As sometimes the parties simply cannot agree, or at least not on all issues. If the parties do agree to formalize any agreements made, the mediator will typically prepare a document called a memorandum of understanding, and then have both parties sign same. The goal of mediation is to facilitate negotiations; however, this is not always possible as noted. Nevertheless, parties should go into mediation with an open mind while also possessing a firm idea of what they want. The mediator will help to keep dialogue going and to attempt to get each spouse to at least understand what the other wants, and why he or she thinks that is fair, if nothing else. Getting to this point alone can often result in the mediation being deemed a success in at least some capacity. As from there, agreement on unresolved issues is all the more possible.
Though the court may order mediation or local court rules may require it, not all couples will be required to mediate. Mediation requires the ability of parties to communicate safely. Thus, in cases where domestic violence has occurred or is deemed likely to occur, mediation may not be safe. Other situations may include spouses with mental illnesses or spouses that have grossly unequal bargaining power. The court will have to consider the factors of each couple to determine if mediation can serve its ultimate goal. In cases where this is doubtful or not present, mediation may be skipped or altered to accommodate the spouses.
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