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When is Mediation Appropriate?

 

Parties facing divorce or parental responsibility (custody) cases have another option other than a painful, expensive trial. Mediation is a process that allows the parties to peacefully work out a settlement that works for the entire family. This approach is appropriate in almost every circumstance and for every family, with just a few exceptions.

Basics of Mediation

When parties mediate their divorce or family law case, they step out of the formal court process that pits them as adversaries and work with a professional mediator to try to reach a resolution in the case on their own. The parties meet with the mediator, and the entire focus is on finding an outcome that is mutually agreeable and beneficial for the entire family.

The goal of mediation is a negotiated settlement or agreement that completely resolves their entire case. However, sometimes mediation also results in partial agreements. The settlement or agreement is then submitted to the Court for approval. Once it is approved by the Court it becomes a binding Order.  Each party may retain their own attorney to help them understand the law and their legal rights. If the party is represented, their attorney will review the final agreement to ensure it is fair and legally accurate. Attorneys are able to help guide their client through the mediation process, help them to answer questions, and brainstorm potential settlements.

The Mediator

Mediators undergo specific training, but experience levels can vary. It is important to choose one who is experienced with a professional background. Most mediators are attorneys, but some have a therapy or counseling background. The mediator acts as a completely neutral third party during the process and does not make any decisions or rulings. Instead, the mediator is there to facilitate settlement discussions between the parties. The mediator will take the time to understand each party’s perspective and then help facilitate settlement discussions based on both party’s position. The mediator may point out options and provide legal information. The mediator is not allowed to provide legal advice to the parties. Ultimately the decision to reach a full or partial agreement rests with the parties. A settlement is not required.

Benefits of Mediation

Mediation provides a wealth of benefits and, as such, is truly the gold standard when it comes to resolving a divorce or family law issue. These advantages include the following:

  1. The mediation process moves much more quickly than a litigated divorce.. The parties will likely attend mediation well in advance of any Court hearing. If the parties need extra time to think or take time apart before completing the process, they will typically have the time needed to so do.
  2. Mediation is less expensive than a traditional litigated divorce.
  3. Focus on agreement. Litigated divorces focus on conflict – what the couple does not agree on. Mediation focuses on agreement. The couple finds things they do agree on, and then they build on that with compromises to reach a solution that works for everyone.
  4. The entire tone of mediation is different than a traditional divorce. The process works to bring the couple together so they can talk and find solutions. As such, it is an emotionally easier process since the goal is to find a mutually agreeable solution instead of finding new ways to tear each other down. Traditional court processes polarize the couple by highlighting areas of conflict and ratcheting up the rivalry.
  5. New skills. Parties who mediate learn conflict resolution skills they can use moving forward. This is particularly important if they share a child. There are bound to be disagreements about parenting time and decision-making in the future. Mediation can be an effect tool to allow parents to resolve these issues on their own, without Court involvement. They also are able to model peaceful conflict resolution for their children, showing them through their actions that mutual respect, kindness, and compromise are the way to handle problems.
  6. When a couple works out a settlement in mediation, they are able to craft it exactly to their family’s needs. They are the ones who know their family the best and understand what their children need. They can create a parenting plan that fits their schedules and goals

In a litigated divorce, a judge who does not personally know the parents or child only learns about the issues involved during a short hearing. Judges often issue cookie-cutter parenting plans that do not consider the unique dynamics of the specific family. As such, a litigated judgment or order often does not accommodate the family’s unique needs and is less likely to be something they can manage without conflict. This often results in the parties returning to Court to modify the Order in the future.

Who Should Mediate

Almost every single family going through a divorce or family law case should try mediation because it offers tremendous benefits. In fact, most Courts will require mediation prior to allowing the parties to proceed to a contested hearing. Even if it seems there is no possible settlement, mediation is worth a try because there are almost always some things the parties can come to an agreement about. Once one agreement is made, it becomes easier to piece together the rest of the issues.

Who Shouldn’t Mediate

There are a few situations in which mediation is not considered appropriate:

  • Domestic violence has been an issue in the relationship. In this situation, it is not safe for the survivor to engage with the aggressor, and it is not possible for the survivor to negotiate freely without pressure or fear. In this case, the survivor may be able to request the Court waive the mediation requirement.
  • The couple cannot speak civilly. To be able to mediate, you and your spouse or partner must be in the same room and be able to talk directly to each other in a calm and reasonable way. In extreme cases where it is impossible to do so without uncontrollable anger, mediation will not work. However, there is a subgroup of mediation called shuttle mediation where the couple sits in separate rooms and the mediator moves between them that may be an option.
  • One member of the couple cannot speak for themselves or negotiate on their own behalf. Some people may find it impossible to stand up to their spouse, say what they want or need, and engage in the give and take necessary for negotiation. In that situation, mediation is not appropriate since both people must be able to speak for themselves.

The mediation process offers so many benefits that almost every single couple heading to divorce or family court should attempt it. The skilled attorneys at Burnham Law are available for your mediation, divorce, and family law case. Call us today at 303-835-9238 to get the help you need.

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Heidi
Whitaker

Partner - Domestic Relations

Fort Collins

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