1. The alternative to mediation, that being litigation, is a nightmare. The high cost and long delays associated with litigation makes it an impractical method of resolving disputes. It is not uncommon for the costs related to litigation: attorney's fees, expert witnesses, appraisals, etc. to exceed the amount in dispute. If obviously makes no sense to spend more to litigate a case than one stands to obtain in the settlement of the case. For example, if the best case scenario is for the husband or wife to end up with $50,000 worth of assets, what sense does it make to spend that on litigation. The party ends up with zero.
2. Mediation is a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement. A mediation session involves a discussion of the the dispute by the parties, as opposed to the formal presentation by witnesses and evidence which takes place in a trial. A mediation session is normally attended only by the parties and the mediator, and can often be complete within one day.
3. The mediation process is voluntary and non-binding. It is also private and confidential. What sense does it make for a divorcing couple to air their dirty laundry in an open courtroom when dispute can be resolved in a private conference room with no public record is made of the proceedings.
4. While each mediator conducts the session differently, a common progression is summarized by the following: first the mediator typically explains the format and the fact that the proceedings a voluntary, confidential, and non-binding. The mediator will then ask each party to make a summary of their case, identifying the issues in dispute. It is important that the parties get a chance to express themselves- to get "it off their chest." The other party needs to hear this, as does the mediator.
5. Following this "introductory period" the mediator will lead the parties through the issues which need to be discusses and decided. Legal information is dispensed, and the parties discuss the issues with each other directly. The mediator does not "render a decision." He will make suggestions, but allow the parties to make their own decision based on a realistic analysis of their case.
6. The American Arbitration Association reports that over 85% of mediations are successful. My experience is that it is higher than that. This is true even when prior attempts to settle have been unsuccessful and where the parties are pessimistic about the prospects of settlement. So why does mediation work?
7. First, negotiations between the parties never take place without the presence of the mediator. The parties, or their attorney's often feel that making a reasonable settlement offer will be taken as a sign of weakness by the other party, and will be taken advantage of in negotiations with the other party. Mediation provides a safe environment for negotiations because the mediator can control and direct the communications.
8. Second, if attorneys are already involved, it is not unusual for them to be more interested in posturing than in resolving disputes. The mediators job is to keep the parties focused on productive avenues to settlement, and posturing and hard negotiating are often reduced or eliminated.
9. Third, mediation provides the opportunity for all decision makes to be present at the same table. Negotiating without such presence is a waste of time. If the decision maker is present a settlement can often be reached in a minimum of time.
10. During the mediation session, each party is given the opportunity to directly address the opposing party. That person's position, feelings, and emotions can be conveyed. This presentation has a dual purpose: first the opposing party is made aware of the issues which are important to the other spouse, and secondly the presenter has had an opportunity to express themselves to the other party, which otherwise probably will not occur.
11. During mediation the parties will often get a "realistic" look at their case and what they are likely to achieve in Court. As parties become more educated to what they can realistically achieve, their positions on settlement tends to become more reasonable and flexible.
12. Lastly, mediation allows the parties to develop a number of options for settlement. Without mediation, those options are generally not discussed. Once a number of options have been made clear, settlement becomes significantly easier.