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What if you don't need (or want) a lawyer?

BY: Carol Ann Wilson

Mediation and Arbitration

Before 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.

The 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

Mediation doesn't eliminate your need for a competent lawyer. It does require voluntary participation of both husband and wife.

Mediators 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.

Gary 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."

He 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."

Why? 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.

This 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 interests.

The 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

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