When asked this question, most people will respond quickly that it
is an alternative to expensive attorney's fees and lengthy waits for the
opportunity to present your case to the Court.
While this response is accurate, it is not the most important part of mediation.
The Alamogordo Mediation Center defines the single most important purpose
of mediation as placing the parties in control . On first reading
of that statement, you may think that you and your partner cannot agree
on anything at this point in your life; how can you ever agree to the division
of your property, debts, custody, support, time sharing with the children,
and numerous other issues that must be addressed to restructure your family?
This is why so many people choose to place a third party, such as their
attorney or the court, in charge of their divorce.
The problem with placing a third party in charge is your lack of control
in the process. You cannot control how long it takes to schedule
a hearing. You cannot control how long it takes to make a change
in a temporary plan that is not working. Since you and your partner are
now working through your attorneys, you are required to call your attorney
to communicate the problem, and your attorney has to call their attorney
to explain your position. The parties’ lack of control results in
a very expensive solution at a time when most parties can least afford
it.
You may require the assistance of an attorney for specialized issues in
the dissolution of your marriage or partnership. Many attorneys have come
to appreciate the value of mediation as a tool to resolve disputes and
may refer you to a mediator for assistance in developing an agreement.
If you are currently represented by an attorney and are in the process
of your dispute, your attorney can work closely with the mediator to assure
that all relevant issues are being addressed in the sessions and the resulting
agreement. They can provide careful review of the agreement documents to
assure that they are complete and provide assistance in the preparation
of the final order adopting your mediation agreements, preparing division
orders for retirement benefits, deeds to transfer real property and numerous
other tasks that are required to complete this transition in your life.
Most parties are able to resolve a major portion, if not all, of their
disputes with the assistance of an experienced and qualified mediator.
The mediator is a neutral third party and does not represent the interest
of either party. While the mediator is not an attorney and will not
give you legal advice, the mediator can provide facts that will enable
you to make a fully informed decision on the issues as you proceed in the
process.
In stark contrast to the court setting, mediation is conducted in a warm,
inviting, and comfortable atmosphere where the parties can be open and
candid about their feelings and the events they are facing in this transition
period and offer possible solutions to those problems. The mediator
maintains a safe and open environment that invites the exchange of ideas
and an opportunity for the parties to discuss fears and concerns which
may be holding them fast to a current position. The mediator may
propose alternative choices to assist the parties in resolving an issue,
but the parties themselves always make the final agreement.
Almost without exception, parties responsible for their own agreement are
happier with their agreement than they are with a resolution created by
a third party.
When people use mediation, they do not give up their right to go to court.
If you are unable to resolve your disputes in mediation, you may stop the
process at any time and proceed with a contested proceeding before
the court.
