Settling your divorce financial settlement or child custody dispute outside of court does not mean you are engaging in Divorce Mediation.
Most Divorce cases resolve outside of a court room through 4-way settlement conferences, Collaborative Divorce proceedings or formal settlement proposals via letters between legal counsel. Mediation is a process where a Neutral facilitator guides a couple through decision making around legal, emotional and financial issues that must be resolved in a divorce.
The New York courts define mediation as “an alternative to court litigation for resolving disputes that arise as two people separate their lives. A neutral third party called a “mediator helps the couple work through the issues of divorce and reach a mutually agreeable settlement.” The mediator is not the decision-maker and does not resolve the dispute — the parties do. However a mediator is often able to more fully explore the parties’ underlying interests, needs and priorities. Mediation is a more flexible process, which is less formal and may reduce the time and costs that are often associated with a trial.”
I like the definition so I will dissect some key pieces below to help individuals and couples Navigating Divorce Mediation.
- “Confidential” – Divorce Mediation is a confidential process. The process is kept confidential. Nothing said nor written during a mediation or for the purpose of a mediation can be compelled into evidence or testimony in any court proceeding without the express written consent of both parties. This Confidentiality is part of what makes up the Safe Container in Mediation. Parties can speak freely and negotiate in good faith without concern that their attempts to compromise and settle their dispute will later be used against them in court.
- “Non-binding” – Results of a settlement discussion during a mediation are not binding on the parties unless reduced to writing and entered with the court. You can reduce an agreement to writing during a mediation session and have it signed before leaving in order to create an enforceable agreement.
- “Facilitates” – A mediator is a facilitator, not a decision-maker. There should be no expectation on behalf of the parties that a mediator will make decisions for them. Rather the mediator is there to inform the parties of the items they may want to discuss in settlement discussions and guide conversation to help both parties explore their interests and goals for the process. A mediator should avoid giving advice or telling the clients how it is. A mediator who offers guidance risks their role as a neutral being compromised if the advice they give is seen as one sided so it is better not to offer advice to the individuals. I do offer advice as to how to most effectively facilitate a stated goal once a couple agrees on a common goal.
Divorce Mediation has become a household term over the last 20 years. Google the term Divorce Mediation and you will get dozens of results for lawyers, some mental health professionals, a few Financial Professionals and even some with no professional qualifications purporting to offer Divorce Mediation. Misunderstanding the Divorce Mediation process, the intentions of the parties engaging in the process or hiring an unqualified mediator usually results in failed mediation.
The confidential and non-binding nature of the mediation process often leaves couples with nothing to show for the thousands of dollars in fees and months of effort. For these reasons it is of paramount importance that couples and individuals do their homework before opting into Divorce Mediation and hiring a particular mediator.
[This information is not intended to be a substitute for individualized advice. Please consult your legal advisor regarding your specific situation.]