Comparisons of Divorce Mediation With Other Alternatives
The mediation I am discussing is a private arrangement to resolve your entire end-of-marriage dispute. This is different from child custody mediation that is mandatory in most states before any court hearing involving child custody or visitation. The courtís own mediator conducts child custody mediation reduced or no cost. You can voluntarily schedule a child custody mediation session without filing any additional papers if both parents in a divorce agree to use the mediator. Note that in some states, however, the court mediator is authorized to help you settle everything.
You’ll have to commit more of your time to the divorce proceeding if you opt for mediation than if you use an attorney to negotiate a settlement. Do you have the time and energy available? Can you make it available? Not only will you have to do the legwork of gathering information, you’ll have to organize it and present it. You should be reasonably sure of your ability to gather, organize and present information before you commit yourself to mediation. You should at least consider whether you wish to hire an attorney to represent you or to help you with the mediation, which may still result in a substantial cost savings in a complex case because of the non-adversarial manner in which the facts are gathered and presented.
A significant benefit of mediation for many men and women is the opportunity to be heard, to express their feelings and concerns. Crowded court calendars and rules of evidence minimize this opportunity for litigants. I believe that individuals need to express their feelings and perhaps even to vent within reason before they are in a posture to focus on resolving the issues in their divorce.
Mediation also offers the flexibility of moving at a more human pace than court proceedings that generally reserve the final determination of all issues for trial. In mediation, you may be able to isolate issues that can safely be resolved independently. Most of us are used to tackling things one-at-a-time, and in this instance early success on some issues is likely to breed further success on others.
Don’t confuse mediation with arbitration, another substitute for courtroom proceedings. Arbitration uses most of the safeguards of litigation. In arbitration, discovery of facts, presentation of evidence, a contested proceeding before a neutral arbitrator who serves the role of a judge, the right to cross-examine and an order appealable under limited circumstances are all available to encourage the determination of all the true facts and to apply the correct law to them. Arbitration is a speedy, adversarial proceeding used primarily by businessmen to eliminate much of the cost and delay inherent in conventional litigation.
Mediation doesn’t have the built-in safeguards that arbitration does. While some mediators may use an agreement to incorporate the rules of evidence, this is about the extent of protection available. Mediation’s focus on involving you and your spouse in solving your problem together may obscure a conflict that you have with your spouse. You may never be aware of an important issue that was skipped right over. You settle the case yourself, with the guidance and suggestions of a neutral mediator.
On the other hand, a skilled mediator can serve as a reality check in divorce cases in which one spouse has unrealistic expectations. This lesson can be learned much less expensively in a mediation setting than in full litigation.
Mediation is not the exclusive path to settling a case. Most divorce cases settle. Choosing a creative lawyer gives you the opportunity to settle once you know the facts and understand the law. Substantial cost savings are also available in a litigated complex case if the parties and counsel cooperate in the gathering of information and encourage settlement discussions that give both parties the chance to reach a satisfactory settlement without the risk of a far less favorable ruling by the court. Of course, the court is always available if your spouse is being obstinate or there are genuine issues requiring a court ruling.
You don’t waive your right to go to court merely by trying mediation, but if you do have to go to court it usually means the mediation is over. The result: you’ll have to get a lawyer and prepare for trial in addition to the expense and delay incurred in mediation.