Mediation – a sensible alternative

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By Gary L. Borger, Esq.

“Mediation.” It’s a word that’s heard and used a lot; but, what does it mean? And, more importantly, what does it mean to someone in the midst of marital turmoil and confusion, or even separation, or divorce?

Mediation can be a less expensive, quicker, less contentious approach to resolving those questions that must be resolved if a marriage must be dissolved and the spouses have the wisdom not to want to give up control of their lives to “the system,” i.e., to lawyers and judges.

First, most mediations are conducted by using one mediator (although there are co-mediations where more than one mediator is involved, such as a man and a woman and/or an attorney and a psychologist).

Second, the mediation is conducted in an office, not at the court house.

Third, the mediator does not make decisions for the spouses. Rather, he or she guides the spouses to address between themselves each decision which the spouses must make to complete a final agreement and get divorced on their own terms.

Fourth, the mediator helps keep the negotiations between the spouses civil and guides them to address each question that must be resolved to have a truly settled case that only needs a judge to dissolve the marriage, not to rule on the many questions that the spouses in mediation resolve between themselves on an out-of-court basis, on their terms which both can accept as fair.

Fifth, although many mediators are attorneys (though they don’t have to be), the mediator should not give legal advice to the spouses such as what likely would happen if the spouses were to go to court for a judge to rule on all their questions about their children, property, and income/support. Rather, optimally (although not necessarily), each spouse will have consulted with his or her individually-retained attorney for legal advice prior to going through the mediation (and, as necessary, to have legal questions answered as the mediation proceeds along).

This is but an outline of what mediation is. Future postings will address how mediation is different than other means of dispute resolution (such as arbitration, negotiation through lawyers, or trial before a judge), and how mediation proceeds from start to finish.