What is Mediation

Mediation is an alternative method of dispute resolution available to parties undergoing separation or divorce. The primary method of dispute resolution has been litigation, in which the separating or divorcing parties are adversaries and a judge or master makes the decisions for the parties. Mediation is different because the parties work together to decide between themselves what is best for them and their children. The mediator is not a judge, but helps the parties to decide, on their own, how to resolve their differences.

What Kinds of Mediation Are Available?

What Are the Benefits of Mediation?

Through mediation, the parties are directly involved in making decisions for and about themselves and their children, unlike when parties take the case to court. In court, a judge or master decides the outcome for the parties according to the law and the facts presented. Since judges are restricted as to what the law allows them to do, both parties may find themselves unhappy with the judge's decision.

When working through mediation rather than the court, the ability for the parties to work through their problems without being bound by rules of the court allows more freedom to satisfy everyone concerned. The parties may also be more inclined to abide by an agreement that they have reached together, rather than terms which have been forced upon them by the court.

Sometimes, people try to solve future problems by following the patterns set when they first separated or divorced. If the parties litigated their differences initially, they are more likely to approach future problems in the same way. If the parties resolve their differences through mediation and cooperation from the very beginning, they will most likely cooperate to resolve any other issues that may arise.

If you think there are trust problems before the Court case, just wait until after one or both parents feel aggrieved by the process and are shocked by the way the other parent "lied" in public, under oath, about virtually everything that took place. It is all too common and is all avoidable.

However, it does take both parties to be mature enough to realize the importance of working through the mediation process in order to work things out amicably. It is indeed a process, and to expect long-term feelings of anger, hatred, distrust and fear of the unknown to be resolved in two court-ordered mediation sessions is often unrealistic.

It is too easy for people to say that "we tried mediation" and it didn't work. Mediation should be "tried until it works." The end result could save you a lifetime of agony and your children will thank you later in life.

How Do the Parties Begin Mediation?

Court-ordered mediation often begins after a custody complaint is ruled in the court system. The mediator for the parties is appointed by the court from a list of qualified mediators. For voluntary mediation, the parties begin by locating a mediator and making an appointment.

Selecting a Mediator

A mediator is a professional who is trained in helping people resolve disputes.

When selecting a mediator, choose someone who is:

1. Knowledgeable of law, social work, or conflict resolution skills and preferably holds a degree in one of these disciplines;
    

2. Trained in mediation through a certified program; and
    

3. Experienced.

Attorneys, mental health professionals and other divorcing couples may be good sources to consult when looking for a qualified mediator.

What Is a Mediator's Role?

	A mediator is a neutral person who helps all parties to become informed about each other's needs and interests while gathering information that will be useful in developing agreements that are voluntary and designed to meet the goals and serve the interests of everyone involved.
	While the goal of mediation is to reach a fair agreement, participants are always in control of the mediation process, in that they can end the mediation any time and there is no undue pressure from the mediator to reach an agreement.
	The mediator is a person who has been trained to help participants identify issues, create an orderly program for exploring interests, facilitate problem-solving, and to keep negotiation on track.
	The mediator does not make any judgments regarding the substance of the dispute or any possible resolution. The mediator does not give legal advice. The participants should consult their own counsel to assess the merits of legal or other issues.
	The mediator does insist, however, that the integrity of the mediation process is never violated, and will deter any abuse of the process that comes to his or her attention.
	The mediator seeks to give the participants the means to solve problems on their own without the need for judges and other authorities to make the decisions.
	The mediation process empowers parties to solve problems themselves.

Is an Attorney Necessary In Mediation?

Often in court-ordered mediation, each party is required to be represented by an attorney.

In voluntary mediation, each party has the right to decide whether to be represented by an attorney.

However, some private mediators may request that the parties each engage attorneys to represent them in finalizing any mediated agreement(s).

Parties need to embrace the mediation process and make efforts to reach agreements that are truly their own. Often it is advisable to have your attorney review a proposed mediated agreement or memorandum of intent prepared by a mediator.

However, if you were satisfied with the terms of the mediated agreement, you should not simply be swayed to "not agree" because your lawyer thinks you can do better in court. He or she may be confident, but may be mistaken, and Court is about as unpredictable as the lottery in many cases.

Often too, once the power struggle is resolved by mutual agreement, it is less likely to continue and there is more likely to be give and take by both parties, which is essential when raising children.

It is unfortunate, but some attorneys do not understand the value and importance of mediation and the positive long-term effects of the process, and hinder the possibility of cases being resolved in an amicable fashion.

Do not let your attorney simply throw fuel on the fire. If that happens, your attorney's fees will certainly reflect it.

What Will Mediation Cost?

The cost of mediation often depends upon the specific type of mediation.

The cost of court-ordered mediation may be waived by the court, or the court may order either party to pay the entire cost of mediation or order both parties to share the cost.

The parties will also incur the cost of representation by their individual attorneys. In voluntary mediation, the parties are responsible for mediation expenses themselves.

Since there is no limit on the number of mediation sessions, as in court-ordered mediation, voluntary mediation may result in a greater expense to both parties.

Mediation costs are usually based on an hourly rate or a flat fee, depending upon the contract between the parties and the mediator. Although there is a cost for mediation, it is far more than likely that the overall cost of the separation or divorce will be less expensive if pursued through mediation than through litigation.

What Kinds of Issues May Be Addressed Through Mediation?

The goal of mediation is to reach a satisfactory agreement on the topics which brought the parties to mediation in the first place. With court-ordered mediation, the topics are restricted to custody and visitation unless both parties agree to include other issues.

The parties may choose to discuss the children's living arrangements, the children's need to spend quality time with each parent and the parent's schedules. In voluntary mediation, any and all topics which are important to the parties are open for discussion. For example, custody and visitation, the disposition of property, each party's income and expenses, alimony, child support and life insurance and health insurance may be discussed.

What Happens After an Agreement Is Reached?

With court-ordered mediation, the mediator must prepare a written draft of the agreement and send copies of the agreement to the parties and their attorneys. The agreement may be approved or modified by the parties. The mediator then submits the agreement to the court for approval and entry as an order.

With voluntary mediation, the private mediator may prepare an agreement. Before a private mediation agreement is signed, it should be reviewed by each party with his or her attorney. If corrections or changes are needed and both parties agree, then the changes may be made. This agreement may take effect immediately and govern the parties until they decide to divorce. At that time, the agreement may be incorporated into the divorce decree.

What If an Agreement Is Not Reached?

In court-ordered mediation, the case will return to the court for a decision by the master or judge if the two parties cannot come to an agreement. The mediator is forbidden to reveal to the judge anything that the parties discussed during mediation and may not be called as a witness.

If voluntary mediation does not succeed, the parties always have the option of hiring attorneys and resolving their differences in court.

Is Mediation for Everyone?

The success of court-ordered or voluntary mediation depends upon the ability of both parties to work together rationally to find a satisfactory solution to problems arising from divorce and custody disputes.

Since not everyone is able to cooperate in such disputes, the Maryland Legislature has provided that the court may not order mediation in any case where there is a genuine threat of physical or sexual abuse of one of the parties to the parties' children.

It should also be noted that in custody litigation there are often general claims of abuse, mental cruelty and the like, and quite often things are generally exaggerated ten-fold in an effort to make one of the parents look "bad" in the eyes of the court, etc.

Any true and genuine fears of physical or sexual abuse occurring in mediation should, in actuality, be slim to none. Let's face it, mediation will be taking place generally in an office setting, with other people around, and the parties are presumably coming to mediation in an effort to resolve differences. Any real or perceived fear should be substantially less than what would have otherwise occurred in the past when the parties were left to their own devices in dealing with disputes without professional intervention.

Far too often, one or the other parties may use fear as a convenient excuse not to engage in the mediation process. Generally, the greater fear should be of what can happen in a court room, with respect to your children's future, if efforts to resolve parental differences result in contested custody litigation.

Remember, anything that occurs in mediation (other than threats or violations of the law) is not admissible in court under any circumstances. Therefore, parties have incentive to speak openly and honestly without fear of losing tactical ground, as may otherwise be the case in litigation.

While mediators set parameters and guidelines for effective communication, and demand an environment of mutual respect and a certain amount of human courtesy, often a skilled mediator will let the parties "vent" to a certain degree since being able to express one's anger and frustration is often a precursor to reasonableness.

Although mediation may not be for everyone and it may not resolve every parental dispute, it is hard to come up with any reasons for not fully embracing the mediation process and trying to resolve matters in an amicable fashion that effect the future of your children and your ability to move on with your life. When you put the past behind you, the future opens to brighter opportunities for you and your children.

Content on this site is virus free.  Stop the ActiveX warning from popping up all the time?