What are some Pros and Cons for Mediation?

Mediation is one of the most commonly used alternative methods of dispute resolution during the divorce process. Mediation is an out-of-court negotiation process that takes place between the husband, wife, and a neutral third-party called a mediator. Typically, the third-party is a retired judge, a family law attorney, or someone else trained in dispute resolution techniques. Often, the parties will also be accompanied by their attorneys to assist them in understanding the law and what effect their choices might have from a legal perspective. One important thing to remember though, is that during a mediation the person conducting the mediation will not and cannot provide legal advice to the parties.

There are a number of advantages to choosing mediation, including:

• Cost-effectiveness: Although undergoing mediation is certainly not cheap, in the end, it often proves to be far less expensive than undergoing a long and drawn-out legal process where you battle it out over every issue. Typically, the parties are responsible for splitting the cost of the mediator, as well as paying for the time spent by their own attorneys. In the end, if mediation is successful, the savings can be considerable and well worth it.

• Confidentiality: Sometimes, couples who are divorcing do not consider the fact that when they choose to take all of their issues to court, they not only sign themselves up for a great deal of stress and expense – they also expose very private details of their lives to public scrutiny. Court records are public records for the most part. Many people do not want the private details of their lives available for anyone to read about or listen to. Mediation, by contrast, offers confidentiality. The mediator will not divulge her information to others nor will the mediation become part of a public court record.

• Less adversarial: As we have said, formal arguments and battles in court are adversarial by theirvery nature. Most people may go into a divorce thinking this is what they want, but in the long run it really doesn’t benefit anyone. One of the great advantages of mediation is that couples can communicate openly and cooperatively and in turn, everyone experiences less stress and emotional turmoil.

• The freedom to make your own choices: When you choose mediation, you are choosing to have a say in some of the most important issues in your life. The fact of the matter is that there is no judge in any courtroom anywhere who knows your family better than you do. When you choose mediation, you give yourself the opportunity to make choices and work together toward an agreement that best fits your lifestyle.

Of course, as with so many types of legal processes, no matter how many benefits a process may have, there are typically some downsides too. When it comes to mediation, some of the downsides include:

• Lack of training: For the most part, states do not regulate mediators, and there is no required training, certification, or oversight. As a result, there are some mediators who are excellent and who well-trained in negotiating skills, and others who simply aren’t. As a result, it can be very helpful to ask your attorney for his or her recommendations as to well-qualified mediators, and also to talk to friends or family who may have used a mediator in the past as to what their recommendations might be.

• Lack of attorney involvement: Sometimes, couples make assumption that because a mediator will oversee the mediation, they don’t need to have attorneys involved. While this assumption is understandable on some level, it can be detrimental to the success of the mediation in many cases. Becoming involved in a mediation without a thorough understanding of the law and the legal consequences that certain decisions might have could end up making those decisions more costly in the long-term than you might expect.

• Results are affected by relationship dynamics: Although mediation may be a great choice for couples who are able to cooperate and communicate calmly and openly, the truth is that some couples simply can’t do that, for any number of reasons. If emotions are still running very high, mediation may not be the best option. This can especially be true for relationships with a history of domestic violence, because the victim often feels disempowered, and the abuser will often attempt to manipulate the mediation process. Likewise, if one spouse is struggling with addiction, mental illness, or some other issue that prevents them from communicating clearly and rationally, mediation may not be a good choice.

In the end though, despite some of its negatives, mediation can be extremely effective in helping you and your spouse to work toward coming up with creative and effective resolutions, tailored to your particular circumstances. By way of example, perhaps one parent has a very demanding work schedule that requires a great deal of travel at certain times of the year. A well-trained mediator can help couples work toward creating a unique custody schedule that fits their situation. A judge, by contrast, will rarely have the time or ability to do that. Instead, courts often just try to split custody as evenly and expeditiously as possible, without as much attention to the details of the family’s personal life.

Contact Adkins Law if you want to learn more about mediation and the mediation process. We can arrange a consultation with an experienced family law attorney conveniently located in Huntersville.