The Benefits of Mediation Over Litigation


Mediation is an alternative dispute resolution process using a neutral, third-party mediator to facilitate negotiations. Mediators are trained in techniques to promote dialogue and realistic bargaining between the parties, which helps them reach a resolution by agreement. Rather than accepting an imposed judgment by a third party, the clients determine whether an agreement results from the process, as well as the content of that agreement.

This process frequently resolves a divorce much faster than going through court, reduces contention and saves both parties a fortune in litigation costs. Additionally, the settlement is usually much more satisfying for both parties since they were able to determine the outcome themselves, as opposed to having a judge simply hand down a decision.

Mediation typically begins with a joint session where both parties meet with the mediator. Each party has an opportunity to present the relevant facts, state his or her goals and make other pertinent comments. To facilitate the negotiations, the mediator may meet separately with each party to discuss the issues in more detail and explore each party’s position. The mediator employs techniques such as reality testing, reframing and offers their experienced feedback where appropriate to help settle even the toughest cases.

By choosing mediation, you and your spouse avoid many of the unpleasantries associated with the “traditional” divorce process that would have gone something like this:

You and your spouse hire lawyers and one of you files for divorce. The respondent might file a counterclaim. The matter would be scheduled for a “temporary hearing” that takes a full day, and results in some temporary or incomplete ruling that is designed to take care of the parties until the final hearing.

The lawyers begin trading nasty or threatening letters and the process of “discovery” begins. Documents from banks, counselors and other relevant institutions or people are subpoenaed. Each lawyer serves interrogatories and requests for documents. You would sit down and answer a lot of tiresome questions. You must produce checking account records, credit card records and other financial statements. Then you can begin the battle for custody.

Either party hires a psychologist, and the court may appoint a guardian ad litem (a lawyer for the child) or a psychologist to investigate both parents. Depositions are taken, resulting in personal questions under oath in front of a court reporter who charges hundreds of dollars for appearing and preparing a transcript. Personal lives and history are invaded for both parties and their families. Court dates are set up and then continued, sometimes many times. The matter may drag on for months, if not years. Then, a judge would make a decision, but probably not right away; judges often take months to rule. Either party can appeal that decision, and that process takes years. All the while, you are being hounded by legal and personal problems while trying to go on with a productive and happy life.

Not a very fun — or cheap — process to go through.

Going the mediation route takes more communication and cooperation, but it is well worth putting past grievances aside and negotiating your own settlement. This way, you are more fully in control of your future.

There are a few things you will want to discuss with your attorney before your first mediation session, however. An easy method for prioritizing your position on various issues is to break them into three categories:

  1. Issues that you will not change your position,
  2. Issues that you may change your position, and
  3. Issues that are not important to you.

The last category may be a valuable negotiating tool for you, and you should not disclose that those issues are unimportant; they may be very important to your spouse and could make a great bargaining chip.

Additionally, be wary of making any final decisions regarding financial issues until you have a clear picture of all assets. It is fine to discuss financial matters, but until you have full disclosure, it is unwise to sign off on a settlement agreement.

Having a trained mediator is almost always a preferable method to going through the family court system for a divorce. Even if you are unable to resolve everything, couples can normally narrow the number of contentious issues down considerably. Give it a shot before you go straight to court; the potential benefits of mediation are far too great to simply dismiss.

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