This installment of our series on Alternative Dispute Resolution will focus on the use of mediation in family law matters.
Mediation offers the parties an opportunity to meet with a neutral party and have issue-focused discussions towards the settlement of the divorce or custody proceeding. The mediator is a neutral third party who facilitates discussion and tries to guide the parties to a resolution by using interest/issue-based, rather than position-based, discussions. Mediation is often very helpful in divorce proceedings, and it can lead to parties settling in a way they find mutually beneficial, without causing unnecessary harm to their familial relationship.
While mediation may be used from the start of a matter, it can also come into play at any later time in divorce proceedings, and even post-decree.
Keeping with the trend towards ADR in divorce proceedings, clients are often encouraged to include a mediation clause in their final decree. Such a clause would require mediation prior to any court proceedings, should one of the parties have an issue to address in the future.
There are additional ADR alternatives to mention that may be used in place of mediation. These include arbitration, mediation-arbitration, and Consensual Special Magistrates. Arbitrators and Magistrates act like judges and have the authority to make decisions for parties, which may or may not be binding. Mediation-Arbitration is just as it sounds: a combination of mediation and arbitration. Here, the mediator can turn into an arbitrator if the parties cannot reach agreement on their own.
Yet, mediation is by far the most commonly used in divorce proceedings. Also, it is the only of these alternatives to truly put the decision-making power completely in the hands of the parties. Since minimizing court-type atmospheres is often a goal in using ADR, mediation is the method of choice to move towards a resolution of the parties’ own making.