Mediation is a process in which a neutral mediator assists the parties in trying to reach agreement on disputed issues in a collaborative, consensual and informed manner. It can alleviate much of the trauma of divorce and reduce or eliminate the hostility of protracted court proceedings. It can be much more cost-effective, efficient and amicable than litigation, and is available before and after parties file for divorce. The mediator is not a judge and cannot impose any decisions upon the parties. It is the parties themselves that are in the best position, with advice and guidance, to reach agreement in an economical and just manner through mediation. Willingness to mediate indicates recognition that the parties both insist on maintaining control over their own financial destiny, resolving all disputes without rancor, and preserving healthy relationships within the family.
Mediation is not a substitute for independent legal, financial or other professional advice. Parties should seek other professional and legal advice during the mediation before finalizing any agreement reached at mediation. The mediator is not functioning as an attorney, does not giving legal advice, and does not protect any party’s legal rights in the mediation process.
Attorneys are welcome and encouraged to attend the mediation. Attorneys can play an important role in the exchange of information, in supporting their clients in the negotiations, advising their clients on the legal implications of a settlement and in drawing up the settlement agreement. The attorneys understand mediation is a non-adversarial and non-argumentative process.
Other professionals such as accountants, actuaries, and especially in cases involving children with special needs, medical or mental health professionals, may be called upon consultation, or may provide reports for use in the mediation. The use of joint consultants is strongly encouraged. Use of single neutral consultants minimizes cost and adversarial posturing.
Confidentiality is essential to the mediation process. The confidentiality of the mediation process is required by law and dictated by common sense. Confidentiality ensures that the exchanges and discussions will be candid and open, with no fear of recrimination. Every participant in the mediation process must understand that all of the proceedings are confidential and will remain so; that the mediator cannot be required to testify as to the mediation process; and that no record of the proceedings will be made. While a memorandum of agreement will be prepared and submitted if agreement is reached, the statements made and the deliberative process used to achieve that agreement will remain confidential.
Mediation is increasingly used as a substitute for sometimes expensive, long and contentious court proceedings. Because the parties themselves reach the agreement and participate fully in the process, it can often provide a far more satisfying resolution to their dispute.