For some people, the word “mediation” brings to mind a scene at the United Nations with men in three piece suits negotiating peace treaties. That is certainly a scene that fits under the mediation umbrella. For families in crisis or going through difficult transitions, mediation looks quite different.
Let’s imagine that you are your spouse or partner have reached a point where it is time to go your separate ways. You have children together and want to remain civil and keep the kids out of the middle. Money is going to be tight with two households. You both just want to get the paperwork done without a lot of fighting and expense, so you can move past this rough patch. Mediation can be an excellent choice. Your mediator will sit down with the two of you together, gather information about the areas of agreement and work with you to find creative solutions in the areas where there is disagreement. Your mediator can draft all of the legal documents to reflect your agreements, or you can have an independent attorney write up the papers for you. In simple cases, this could be wrapped up in one or two sessions with the mediator and the whole situation can be resolved quickly and without the expense and conflict of having a trial and leaving the decisions up to a judge.
Maybe your situation is not this amicable. If your relationship is one fraught with conflict, even with abuse, it is still possible to complete a dissolution of your marriage or a modification of an existing divorce judgment through mediation. In these situations, your mediator might decide that the process will be more effective if you and your partner are in different rooms. In that circumstance, the mediator will work with each partner separately, going back and forth between the parties (hence the term “shuttle” mediation). This does not work in all high conflict or abusive relationships, so your mediator will take some time to screen both of you and may structure the mediation to minimize conflict and maximize safety and confidence. This may sound a bit scary or intimidating if you are in a high conflict relationship. However, going to court is often far scarier and more intimidating for most people than mediation, especially if you don’t have legal counsel.
Some folks are reluctant to consider mediation because they want a court order that can be enforced if things change or because they are concerned that the other person will not follow the agreement. Rest assured that the end result of a successful mediation is a court order that is just as enforceable as one that results from a full court trial. That is one of the reasons that mediation with an attorney is important, since your attorney mediator will make sure that your agreement will pass muster with the judge and that the court order meets the legal requirements and is clear enough to be enforceable.
Mediation is a voluntary process, so you are free to terminate mediation at any time. No one will bully you into agreeing to something you don’t want in mediation. Your mediator is not a decision-maker, so you will have control over the outcome of mediation, although your mediator may share with you how a specific issue might be decided by a judge. Mediation is a confidential process, so no one can force the mediator to tell a judge later on what happened in the mediation and who said what. One of the things that can happen in mediation is called a caucus. This is a fancy word for a private meeting between the mediator and one of the parties. This can happen if a participant wants to have this kind of private communication to discuss possible settlement terms without the other participant knowing about it, and the mediator is not allowed to share that information without permission. This can also happen if the mediator has questions or concerns about something and wants to share those with one of the participants in private. Caucuses are one way that a mediator keeps the process safe and comfortable and keeps the playing field between parties as level as possible.
Mediation is not for everyone or for every situation, but it can be a low-conflict and affordable solution to some of the tricky and stressful family issues that people face — in the real world.