Family/divorce mediation can be a valuable tool for parties who want to amicably resolve the conflicts between them. If direct negotiations fail to bring matters to a close, input from a third-party neutral could be what’s needed.

What is Mediation?

Mediation is a process in which an impartial third-party guides those involved in a dispute to a mutually acceptable resolution. Depending on the issue and the jurisdiction you’re in, mediation may be required. Usually, the parties decide to enter mediation and choose the person who will help them.

Mediation can be used for minor disputes between neighbors to conflicts between multinational corporations with multi-billion-dollar budgets. In our experience, mediation is frequently used in family and employment law disputes.

Who is the Mediator?

A mediator is often an attorney, a retired attorney, or a retired judge. However, professionals from all walks of life may serve, with party consent and approval. Psychologists, psychiatrists, social workers, CPA’s, MBA’s, and others may serve.  Some are more experienced than others, and some specialize in particular areas that may be of help to the parties.

If a court requires mediation, a given period is free of charge. If the parties wish to extend beyond that time, they must pay the person for their services. A skilled and experienced mediator can charge from $150 to $600 per hour, or more, and the parties either split the cost equally or proportionately, by agreement or an Order of the Court.

The mediator must have no interest in the outcome of the dispute and should have no personal or business connections with the parties involved. However, the parties may waive objections to most conflicts of interest with the mediator. Attorneys come to know mediators over time, and there are some we prefer to work with because they excel in their role.

How Does Mediation Work?

Each mediator has their own approach, but generally, both sides get together in a room and tell their side of the story and their priorities. The parties also disclose what progress they’ve made in negotiations, if any, and what is keeping them apart.

If there is a domestic violence restraining order in effect, the courts or the parties may elect virtual mediation, not in the same virtual room at the same time, to allow the matter to proceed. Some mediators have specialty training dealing with domestic violence cases in a mediated context.

After the preliminaries are done, the parties often go into separate rooms where each side can speak freely with the mediator. The mediator often shuttles back and forth, communicating positions and asking questions, hoping the answers will move the negotiations forward.

A mediator may feel it’s up to the parties to come up with solutions, or they may propose their own. The parties may be at the end of their negotiation rope and ask a mediator what they think might work. The mediator may ask a party if they’ll agree to take a particular action, pay or accept a specific amount of money on one issue, or agree to a particular outcome on another issue. Sometimes a party or his/her counsel will float a proposal through the mediator rather than directly, so as not to produce a “reactive devaluation” response, i.e. the direct proposal would be “dead on arrival”.  As long as progress is made, this mediation tennis match could go on productively for hours or days.

Nothing disclosed during mediation can be used during litigation. As part of the process, a mediator shouldn’t disclose something said by either party without permission.

The focus should be on the parties’ needs and goals, and both sides must be willing to give and take to make mediation successful. Often, there are multiple disagreements or issues between parties, and it makes sense to address those that are easier to resolve first, build goodwill, and leave the tough ones for last.

That approach can also bring urgency to the mediation, because each party may feel they’ve made progress, everyone is working on this together, so “let’s just get this done and put it behind us.”

Is There a Key to Successful Mediation?

It’s up to the parties to resolve their disputes. If they’re not in the right mindset for resolution, the best mediator in the world won’t make much difference. If the parties aren’t reasonable, willing to let go of the conflict, and be flexible, mediation will be an exercise in wheel spinning.

If a party sees mediation as an opportunity to antagonize and degrade the other party, it’s a waste of time. If you want to throw in your spouse’s face the fact that they cheated on you or claim that your son hates the other spouse, just stay home.

Mediation is not the time or place for dramatic confrontations. This is about cooler heads prevailing to reach an agreement that allows both sides to have some kind of win and move on with their lives.

A mediator is like a fishing guide. They can take you to a great fishing spot, let you borrow a fishing rod, and give you helpful advice. But ultimately, it’s up to you to catch the fish. The guide can only do so much.

Do You Need Legal Help or Answers to Your Questions?

Are you in a situation where you think your legal rights are being impacted at work, or there’s a family issue that’s getting out of control? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call us today. You’ll be glad you did.