Mediation
What is Mediation?
In mediation, the parties hire a neutral third party to assist them in reaching agreements. The mediator can provide information about the legal process and guide a discussion to help resolve issues. The mediator may or may not be a lawyer. The mediator does not represent either party and cannot provide legal advice. Mediation may occur with parties who have hired attorneys or parties who are not represented by attorneys. The parties communicate with one another directly in the presence of the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle. If the parties proceed in mediation without attorneys, they must still prepare all the required forms for the court, though a mediator may help prepare forms for the parties.
| Advantages | Disadvantages |
| 1. A non-adversarial focus. 2. Lower cost than litigation. 3. The ability to keep the process private. |
1. If the parties do not also retain an attorney to represent them, in addition to retaining the mediator, they will have to proceed without the benefit of legal advice and assistance, since the mediator cannot provide legal advice to either. 2. If mediation proceeds without one or both of the parties having the advice and assistance of an attorney, and the parties seek that advice after an agreement has been reached in mediation and one of the parties finds it necessary to withdraw the agreement after learning their legal rights, the resulting reaction will likely make further productive dialogue much more difficult. 3. If the parties do retain attorneys in addition to the mediator, the expense of three professionals will be incurred wherein they are not working together in an integrated process, reducing the potential cost savings associated with the model. 4. One or both parties might not be able to accurately understand, remember and/or apply legal advice given by an attorney at a mediation session days or weeks later, making a process involving a separation of legal advice and negotiation inefficient or impractical. 5. One or both parties may require direct advocacy or assistance in order to feel comfortable actively participating in a process of negotiation. Since a mediator must strive to maintain a completely neutral stance and cannot align himself or herself with either party, there is very limited help which can be provided to either party to assist them in participating effectively in the negotiation. 6. The parties may be unable to accomplish what is required to commence or conclude or carry out the terms of the agreement reached in their case, since they lack the skills knowledge and resources needed and the mediator cannot provide the legal advice necessary. |