During the past forty years in the United States, the first reaction to any dispute has most often been to at least consider contacting and retaining legal counsel. The court system is frequently seen as the only recourse in resolving difficult situations or to protect one’s rights. As the court system has strained under the weight of the sheer number of lawsuits and businesses and individuals have been overwhelmed by the costs of litigation, other avenues have been sought.

You may have noticed that you hear with more frequency the term “mediation” being used as an approach to all sorts of disputes. If you are involved in a divorce or family law matter, you may expect that at some point your attorney, the opposing attorney, or the court may suggest or even order mediation. More and more disputing parties, troubled couples, and families are also seeking the help of mediators in an effort to avoid or simplify litigation, and to minimize the costs. Mediation can be a very beneficial process, but before you participate, you may want to learn more about what to expect.

What is mediation?

By definition, mediation is a process where disputing parties meet with a neutral third party. This mediator has no authority to resolve the matter, but instead helps the parties in efforts to reach a mutually agreeable settlement. Mediation is very informal, and takes place not in a courtroom, but at an agreed location where the parties feel comfortable. There are no recordings of what takes place, and the parties are encouraged to talk with each other and with the mediator about the dispute.

Who should consider mediation?

Mediation can prove helpful in all types of disputes, from longstanding international controversies to individual families in crisis. Many large corporations and government agencies are also successfully utilizing the mediation process. Although now seen frequently in the court system, the informal nature of mediation makes it a logical first step when problems arise. Anyone involved in a conflict – at home, at work, in your neighborhood, school, or business - should consider mediation in an effort to avoid escalation of the disagreement. An important element, however, is that both parties should be willing to make a good faith effort to discuss and resolve the difficulties between them.

Why should we consider mediation?

The best reason to use mediation is that it works. The benefits can include exploring the options and gaining an understanding of your goals and the perspective of the other party; but most often the parties focus on trying to reach a solution or compromise that works for everyone involved. Even long-standing disputes that seem impossible to settle often find resolution in mediation.

Another significant motivation to consider mediation is the cost. Although mediation costs vary, you can expect them to be a mere fraction of what it would cost for two or more attorneys engaged in litigation.

Maintaining control is also a benefit of mediation. There are few situations in life where one feels less in control than when they are embroiled in a controversy. Once a dispute becomes a lawsuit, the control of the situation usually shifts to the attorneys, and ultimately to the judge or jury. The outcome is almost invariably an issue of great importance for you, but litigation delivers control of the result to a stranger or strangers who can’t possibly know or understand all the facts that are important to you. Mediation provides you an opportunity, with the aid of a neutral third party, to find a solution to which both parties can agree – the control rests with the parties. Even if complete agreement can’t be reached, there is significant benefit in narrowing the issues, achieving even a temporary solution, and/or setting guidelines for future interaction.

A lawsuit is generally a long process – preparation of documents, time frames for responding, hearings, continuances, crowded court dockets, and appeals. Mediation has the potential to provide a prompt resolution. Mediations can be scheduled for a single one day or half day session or in several shorter sessions over the course of a few days or weeks. If the parties can reach agreement, the terms are written down and the agreement generally signed before the parties leave the mediation table.

One important aspect of mediation is confidentiality. With very limited exceptions, the mediator is not permitted to discuss the information shared by the parties with anyone else, and cannot be called as a witness if future litigation does occur. This confidentiality allows the parties, with the aid of the mediator, to explore options that they might not consider in other situations.

When should I consider mediation?

Mediation can be used at virtually any stage in a dispute. Although the parties in mediation can include their lawyers in the process, it is not necessary that the parties be represented by legal counsel. Many people choose to engage in the mediation process to work out some or all of the issues before retaining an attorney to formalize the divorce or other agreement. Others use mediation as an effective alternative and completely avoid litigation.

How do I go about arranging a mediation?

Mediation can offer effective, cost-saving options to conflict and ongoing litigation. If you are interested in arranging a mediation, contact Parenting Partnerships. They can provide you with more information and with assistance in selecting a mediation process, locating a mediator that suits your needs, and inviting the other party to engage in mediation.

PARENTING CHALLENGE:

A divorced father shared his dilemma: My children’s mother and I can’t get along. I love my children, but I don’t look forward to picking them up and dropping them off because it always ends up in a fight – a fight in front of our children. The last time our fight was so intense, our youngest son started crying. While she was tending to our son, I escaped. Of course, I got in trouble for that. How can we discuss our children without fighting all the time?

Communicating with your child’s other parent may be difficult at best. Whether you both can put aside your individual differences, or you continue to be at odds with one another, you still need to meet to discuss what is best for your children. Here are some guidelines that will help you meet successfully.

• Meet by appointment. You can set up a regularly scheduled appointment or meet when the need arises. Your meetings can be in person, or on the telephone. Choose a time and a method that is agreeable to you both.
• Meet without your children present including telephone conversations.
• Make a written list of concerns prior to your meeting. Stick to this list during your meeting.
• Have all the information you need at hand – this may include teacher’s notes, report cards, dental estimates, doctor’s diagnoses, calendar of events, etc.
• Limit the meeting to an agreed upon time – one hour, thirty minutes, forty-five minutes – and stay within those limits.
• Start your meeting on a positive note. “I appreciate your agreement to do this.”
• Keep focused on the tasks at hand. Avoid getting pulled into personal discussions about your relationship.
• Listen respectfully, without interrupting.
• Avoid blaming or criticizing your child’s other parent.
• Come to a decision you can both agree on. If you cannot agree, and the decision is not critical to the immediate well-being of your child, table the discussion until your next meeting.
• If you need to have a decision at this meeting, negotiate. Remember, you are both interested in the best interests of your children. Put your personal differences aside long enough to take care of your children.
• Restate the agreement to be sure you both understand and record the agreement in writing.
• End the meeting on a positive note. “I appreciate your help with these matters.”
• Confirm your next meeting date if you meet regularly.

If you just can’t be in the same space with your child’s other parent, consider emailing each other, but follow the guidelines listed above. The email should not be used to vent your frustrations – stay focused on your children.