We’ve had it drilled into our heads that the first thing we should do in any situation involving the law is to call a lawyer — and the truth is that the law is complex enough that having a lawyer in your court will certainly be useful. But it doesn’t mean that going to court is the best option at your disposal either. Any time that you go to court, it can be an incredibly expensive process. There may be some reward at the end of the tunnel, but it’s rare that the option of mediation won’t provide a faster and less expensive approach.
What is Mediation?
If you aren’t familiar with the concept of mediation (or sometimes called arbitration), it’s simply a method to resolve conflicts before they wind up in front of a judge. Both sides (or everyone involved, if there are more than two parties in dispute) meet with a neutral mediator. Mediators are trained to help people negotiate their own settlement to an issue, in private and confidentiality. Settlements reached through mediation are binding. You can use mediation in just about any situation when you might otherwise go to court: a divorce, a business dispute and so on.
When a problem reaches the point when you’ve already called a lawyer, it can seem like there’s no hope of straightening things out without some authority figure telling you how things are going to play out. But it’s also important to remember that those authority figures don’t necessarily know everything about you and your needs — they simply can’t afford to always look beyond the details of whatever dispute is going on because they need to keep working through their case load.
Mediation in Divorce Proceedings
Divorces can be extremely expensive: the cost of legal fees alone can destroy what you’ve built financially over the years just as arguing can destroy whatever remains of a relationship. Many courts recommend mediation these days, because there are added financial and emotional issues at stake. The two parties (and their lawyers) to a divorce are expected to negotiate a settlement whether they go through mediation or not — if no one can agree, the judge can divide assets. The easiest way to do so is often to sell the assets and divide the cash, and you had better believe that you’re not going to get top dollar if you need to sell anything during a divorce.
But by going through mediation, there’s more support provided for negotiating an equitable arrangement. If both people involved can come to an agreement, that settlement can be taken to a divorce court as an uncontested divorce — which is a matter of appearing for a few moments and paying a filing fee. In contrast, a disputed divorce with a custody battle can easily cost $30,000 when legal fees are settled.
Mediation in Other Disputes
You may find that in some situations, you’re actually required to go to mediation, rather than sue someone. Many employers, for instance, now include a mediation clause in their contracts: employees must use mediation to come to a settlement, rather than jumping into court. If you read other contracts you’ve agreed to, as well, you’re likely to have agreed to more than a few mediation clauses already. Not all mediation clauses are enforceable — you can often still sue if you choose to, but making full use of mediation is useful.
Because mediation is private (in contrast to court cases, which are publicly posted), you can have a little more negotiating power than you might in front of a judge. If you’re facing off against someone that would prefer the dispute not to become public, they face a certain pressure to resolve the situation in mediation.
Mediation Doesn’t Mean Losing Anything
If, at the end of the time you’ve set aside for mediation, you don’t have a settlement, you haven’t given anything up. You still have the option to take the matter in front of a judge. Of course, you may walk out of mediation with an agreement that settles your dispute and with a far lower legal bill than if your lawyer needs to win a judge over to your side. It’s worth considering asking for mediation in a dispute, if only to keep your own legal costs to a minimum.
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Right, in theory maybe. My experience in mediation is that it is completely a waste of time. The mediator assigned by the court took our check then sat their while we talked. There has to be a certification process for mediators. Anyone can setup a sign and say “I am a mediator”.
The best thing you can do is never get married. Period. There is no upside to a marriage, only a huge liability.
Also, TM is correct in pointing out that mediation is not arbitration. There is a huge difference.
Getting a mediator was the best decision I made when I was getting a divorce, of course that was after realizing that the lawyers were costing us an arm and a leg and creating more hostility then we needed.
I completely agree that mediation is appropriate when two parties are getting divorced. I do have a few concerns with this article. First, the article states that agreements reached in mediation are binding. I do not believe that to be the case. There is a difference between private mediation (which is truly non-binding) and court ordered mediation. Private mediation is basically a contract between the two individuals getting divorced but is not binding in the sense that there is a judicial order. If the mediation is court ordered and the two parties reach an agreement, the mediator submits what the parties agreed on to the court. That agreement is usually turned into a judicial order but not until that time is it considered binding.
Secondly, there is a distinction between arbitration and mediation. Both are forms of alternative dispute resolution but there is a difference between the two. In mediation, the third party neutral is there to lead the process along. The two parties to the mediation reach an agreement together while the mediator is simply there to facilitate and help move the process along. In arbitration, the third party listens to what the parties have to say about their position and then makes a decision based on what was stated in the arbitration. Sometimes, it is true that mediation becomes an arbitration if the two parties cannot agree but there is a clear distinction between mediation and arbitration. The distinction is important for people considering divorce to ensure they are weighing the pros and cons of using one alternative dispute resolution process over another.
Mediation works very well with people who want to solve problems in a mature and reasonable manner. When one person wants to win and is prepared to lie, stall and stonewall then mediation is useless no matter how skilled the mediator.
For an inside story on how the process of focusing on winning rather than acting in a fair and reasonable manner read Questing Home: A Safe Place For My Holy Grail. Legal bullying and harassment used to avoid responsibilities are clearly outlined. It is a good eye opener to those who believe abuse of power isn’t alive and well living in families today.
One other side note – the date you actually get divorced can have significant implications on taxes. If you are going through mediation (or even the courts for that matter), make sure that point is discussed because both spouses can benefit from deciding the best time (date) and the rest of the details of their divorce.
Good to know. I am so against lawyers that I think if I ever have a legal problem, I will study the law and represent myself (it worked for others), but this seems like a better option.