entering into mediation or arbitration, you need to know the difference
between them. In arbitration and mediation, a neutral third party is
used. But this is where the similarities end. In arbitration, both
husband and wife agree to give the arbitrator the power to decide the
dispute as a judge would. In binding arbitration, you agree beforehand
to abide by the decision as if it were law. In straight arbitration, if
you don't like it, you can go elsewhere.
purpose of mediation is for both husband and wife to come to a mutually
acceptable settlement. The mediator does no individual counseling, and
is limited to gathering data, setting the ground rules, and keeping both
parties on track. Throughout mediation, alternative solutions are
offered, issues are clarified, and a settlement is arrived at. If you
and your spouse are communicating, then mediation should be explored.
Mediation as a Choice
doesn't eliminate your need for a competent lawyer. It does require
voluntary participation of both husband and wife.
can be retired or active family law commissioners or judges, a lawyer
who is skilled in family law, or a lawyer who is skilled in family law
and has some counseling background. Mediators can also be psychologists
or other professionals who have been trained in mediation.
Friedman is a lawyer and director of the Center for Mediation in Law,
located in Mill Valley, California. His book, A Guide to Divorce
Mediation (Workman Publishing, 1993) is one of the best on the
market today. Since the early 1980s, he has trained thousands of lawyers
in the skills of mediation. When we first spoke with him, we asked if
one of the objectives of mediation was to attempt to get couples through
the divorce process with the least amount of pain. His response was,
"In many ways, mediation is more painful than divorce because you
face each other directly. You experience conflict in a very intense way,
so that in terms of what you go through, many times mediation is harder.
Mediation is a face-to-face situation -- both parties often hear things
they don't want to hear."
stated that plenty of lawyers support the mediation process but added
that many only pay lip service to it. "Most lawyers are quite
attached to law as the standard to be used in determining how people
should decide their disputes and don't believe that such a thing as
fairness exists," he said. "When mediation is brought up, many
lawyers are very cynical about it."
Money is one good reason. Mediation costs a fraction of what it would
for standard lawyers to work out the settlement. It is charged on an
hourly basis and it usually takes from four to ten sessions for couples
to get through the whole process. Friedman said that the best lawyers
and the most competent divorce lawyers have no problems when their
clients participate in mediation. In fact, they actually encourage them
to do it, know how to support them as they go through the process, and
encourage them to come back and consult. "This way, the husband and
wife have the protection of their lawyers and, at the same time, the
ability to control the decisions that are made in meetings face-to-face
with spouse," he said.
is not to say that lawyers have no place in mediation; the contrary is
true. A good lawyer will help you guard against one of the dangers of
mediation - that this more informal approach could miss or
inappropriately value properties that are divided in the marital
settlement. Before you sign any agreements that come out of mediation,
have them reviewed to determine whether they represent your best
bottom line is that no single person has all the answers and any answers
he or she offers will often be muddy. Some type of compromise may well
be the only solution . In reviewing our files of men and women who
achieved successful divorces - from which they came away with their
self-esteem intact and a reasonable property settlement - we noticed two
key similarities: They had a nonadversarial lawyer representing
each side and they kept channels of communication open.
How to Make Mediation Work
DivorceInteractive.com tries to provide
quality information, but cannot guarantee the accuracy, completeness or adequacy
of the information, opinions or other content posted on the site. It is not
intended as a substitute for and should not be relied upon as legal, financial,
accounting, tax, medical or other professional advice. It should not be
construed as establishing a professional-client or professional-patient
relationship. The applicability of legal principles is subject to amendment by
the legislature, interpretation by the courts and different application by
different judges and may differ substantially in individual situations or
different states. Before acting on what you have read, it is important to obtain
appropriate professional advice about your particular situation and facts.
Access to and use of DivorceInteractive.com is subject to additional
Terms and Conditions. DivorceInteractive.com
is a secure site and respects your Privacy.
Advertise With Us |
Professional & Resource Directory
Divorce News | Glossary | Divorce Discussion Forums
DivorceInteractive.com All Rights Reserved.