I recently asked an attorney and fellow blogger, to shed some light (from an attorney’s perspective) on the topic of mediation. I’m sure you’ll find it insightful!
What is Mediation?
Mediation is the process by which two (or more) parties attempt to settle a legal dispute with the assistance of a neutral third party (mediator) whose job is to help the parties work out points of agreement and reach a “fair” result that they both can live with. More and more, mediation has become the preferred means of legal dispute resolution, and has become particularly popular in resolving domestic relations disputes (divorce, child custody, visitation, etc.) because it frees up courtroom dockets and tends to produce results that are more agreeable to the parties. In fact, most judges will now order men and women to participate in mediation before he/she will hear and decide issues in dispute in a divorce or child support/custody situation.
For anyone who has never had the joy of going through a mediation, this is basically how the process works. The parties agree (or a judge orders them) to meet with a mediator. Mediators are specially trained individuals (often former practicing lawyers and judges) who are familiar with the law, but whose job is guide the parties toward agreement. Mediators are paid by the hour, and usually the parties split the cost of the mediator (but are still responsible for their respective attorneys’ fees). There is usually a three room set up; one room for all parties and their respective counsel to initially meet together, and then two rooms where the parties will stay in for the duration of the mediation. After the initial meeting of the parties and “opening statements” where the parties state their issues and positions, each party goes to their respective rooms. The mediator meets with each party in turn, discussing the demands of the parties, the strengths and weaknesses of their respective positions, and ultimately tries to get the parties to reach a middle ground. The key principal that the mediator is working from, and attempts to get the parties to realize, is their BATNA — Best Alternative to Negotiated Agreement. Basically, the BATNA is what is most likely to happen if the parties are unable to reach a settlement, and typically is a worse outcome than one that the parties arrive at on their own.
So why mediation instead of just letting a judge make a decision? The truth of the matter is that judges don’t like making decisions for people. But that seems like their job, right? Yes and no. Yes, judges can make decisions by applying the letter of the law, but it’s preferable that the parties reach an agreement/settlement on their own and the judge merely approves such an agreement. The reason for this is that strict application of the law often times leads to a situation where you are splitting the baby. This is even more so the case where domestic legal disputes are involved because often times, the parties aren’t just fighting over who gets the kids on what holidays or what school the child should go to….. the issues are much deeper, more intangible, less rational, and a judge just does not have the time to deal with all of those issues. Mediators, on the other hand, are trained to deal with these issues, particularly family law mediators. In fact, family law mediators are required to go through special training in addition to the regular mediation certification course so that they know how to deal with the unique issues that arise in family law disputes.
Does it Work?
So does mediation actually work? Yes and no. In theory, both parties will be rational participants and the mediator will assist them in sorting through the emotional baggage to help them determine what the real issues are in the situation….. separate the wheat from the chaff. Ideally both parties will compromise so that the result is a win-win situation. Anyone who has been through a divorce or dispute with child custody/support knows, however, that this is the last place to look for rational people. Because reaching a decision in a mediation is entirely voluntary (contrasted with arbitration, where the arbitrator does have the power to make a binding decision) a party can continue to drag his/her feet, be difficult, and basically stick to his/her agenda of making the other person’s life as difficult as possible. In the non-family law setting, the primary consideration is money, so the avoidance of litigation costs serves as effective leverage. When there are feelings involved, however, creating excessive costs of litigation may be a motivating factor. Rationality goes out the window, and with that the potential efficiency and benefits of mediation.
Keep in Mind…..
One key principle that parents and ex-spouses should keep in mind is that the legal system is not the place to deal with hurt feelings. The purpose of the legal system, including the mediation process, is to provide resolution to true legal disputes, not to avenge wrongdoing, seek validation, or keep the other party in a person’s life (as dysfunctional as that involvement is). Mediation has the potential to produce positive results, but both parties must have the desire to compromise and come to an amicable conclusion in order for it to work. It is somewhat of a self fulfilling prophecy– if the parties believe it’s not going to work, then it’s not, and vice versa.