Divorce Mediation

The definition of mediation under the law is “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement”.

The law defines a mediator as a neutral person who conducts a mediation. It includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation

Mediation is required in the following cases:

• Contested visitation or custody
• Stepparent or grandparent visitation

However, a party can still choose to undergo mediation even if the law does not require it.

The mediator’s task is to assist the parties in coming to an agreement that works for both of them. In mediation, it is the parties themselves who are responsible for ironing out the issues and coming to an agreement.

The following goals are just some of the benefits of mediation:  

• Encourage communication and cooperation
• Prevent detrimental actions between parties, such as verbal attacks, blaming or punishing.
• Layout all possible options for resolving the dispute
• Design a plan that’s a good fit for the children if custody is an issue

It is best decided on a case-to-case basis. The parties must at least be able to identify their motivations, needs, and wants before deciding to go to mediation. In addition, mediation is only appropriate if the parties can find a good mediator, and in small towns that may be hard to find.

There are several advantages to mediation, such as the following:

• Parties get to decide for themselves, instead of submitting the decision to a third person.
• Parties have the option of choosing flexible arrangements that will best serve their needs
• Mediation is a more private forum to air out grievances and concerns, as it is protected by confidentiality.
• Communication between parties is improved.
• Less traumatic for the children involved.
• Mediation may result in a faster resolution of divorce.
• Cost-saving compared to other options, like litigation in family court.

The primary risk in mediation is that the parties are the ones who are responsible for coming to an agreement, instead of an impartial third person deciding on their behalf. As such, there is the possibility that a party may receive an unfair settlement. If the unfair settlement is challenged in court, parties may be subject to more costs.

Consulting attorneys may be hired by each of the parties in addition to a mediator. They function more as advisers in this case. They are often referred to as ‘independent legal counsel’ in this case.

The following services may be provided by a lawyer in this case:

• Reviewing the agreement to mediate
• Give the client advice on the procedure to be followed
• Assist the client in identifying the issue to be discussed
• Guide the client with regard to necessary information and documentation.
• Provide the client with a thorough understanding of the laws involved.
• Suggest solutions and strategies.

 A party can choose to terminate or withdraw from mediation at any time, for any given reason.

In mediation, it is the parties who state their positions and it is the parties themselves who decide on a settlement. Arbitration is more like court, with the arbitrator acting as a judge on the issues.