Practical Law Presentations Mediation Choosing Mediation Over Litigation "Discourage litigation.  Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time." -- Abraham Lincoln (download this info. as a word doc.) What Is Mediation? Mediation brings people in conflict together with a neutral third person who assists them in reaching a mutually-agreeable settlement. The mediator helps them clarify the issues, consider options, and reach a workable agreement that fits their needs. Mediating Divorce and Child Custody Issues Mediation offers divorcing couples the chance to define what is most workable for their particular situation and to tailor an agreement that reflects their own circumstances. Unlike litigation, which often ends a relationship, mediation can help ensure the relationship continues, which is particularly important in the case of a divorced couple who will be co-parenting their children. Even complex legal and emotional issues can be resolved with the help of an experienced mediator. Questions about custody or visitation, child support, dividing property or maintaining relationships with grandparents or stepfamily members are often mediated. Many family lawyers choose to mediate rather than litigate cases involving children and have tailored their practice to dispute resolution. In some jurisdictions, child custody disputes are automatically sent to mediation, assigning trained professionals to assist divorcing parents in working together. What Does Mediation Do? Here's a classic example of how mediation works. Bob and Judy have been sharing custody of their two preschool daughters since their divorce a year ago. The children travel easily between Judy's suburban home four days a week and Bob's city apartment three days a week. Now, with the older daughter about to begin kindergarten, both parents agree that the girls' schedule needs to be changed, but they are divided on which school system their children should attend. Rather than go to court over this issue, Bob and Judy choose mediation as a way of resolving the questions involved. An impartial mediator can bring out the concerns of both parents while focusing on how best to serve the needs of the children. The mediator does not make the final decision, but facilitates the parents' joint decision after the advantages of each option has been discussed. The mediator will also help Bob and Judy put their agreement in writing. In addition to child custody issues, mediation is also helpful in resolving conflicts between neighbors, employers and employees, business partners, adult family members, or anyone who needs or wants to continue dealing with the other side. Many schools have begun peer mediation programs to train students in dispute resolution techniques which they use to help other students. Mediation: encourages direct communication between the parties; helps people decide for themselves; allows for the expression of emotions; defuses anger; explores creative means of solving problems; promotes cooperation. The Relationship Between Mediation & the Law Mediation doesn't rely on specific points of law. People solve their own problems by looking to the future instead of finding fault or blame. In contrast, the courts make judgments based upon the law, and rules limit what can be considered. Courts may be unable to address the underlying issues in a dispute. If you want one of the benefits of court procedure -- enforceability -- your mediation agreement can be written saying that it is intended to be legally binding and then be filed in court. Most mediations end with a written agreement that outlines all the details of the settlement. Written in plain language, it's specific in the "who, what, when, where and how" commitments of the participants and may include steps to follow if similar problems come up in the future. Certain types of mediation agreements, such as those in divorce, custody, or involving significant assets, should be reviewed by an independent attorney or other expert (such as an accountant or real estate professional) before they are signed. Choosing a Mediator Competent mediators come from a wide variety of professions and employ different styles. Important factors in choosing a mediator include experience, reputation, educational credentials, mediation training, apprenticeships, gender, age, cultural background, knowledge of a particular field, and accreditation by mediation organizations or courts. Think about your own expectations and goals for mediation and the mediator style with which you would be comfortable. Do you want a mediator who suggests options, or do you want one who resists offering opinions so that the parties feel responsible for the agreement? As a negotiator for your own interests, what support do you need from a mediator? Many mediators can help you understand what services might be best for your dispute. You may wish to interview the mediator. A good place to start looking for a mediator is in the telephone book under "Mediation Services." That will guide you to agencies and individuals in the field. Other sources for mediators include community and private mediation centers, therapists, and social service agencies such as United Way. Local or state bar associations may give you names of attorneys who specialize in mediation or direct you to a court program. Some bar associations administer their own mediation programs. The Martindale-Hubbell Dispute Resolution Directory lists mediators in every state, and should be available for reference at a law library. Some National Dispute Resolution Organizations also can refer you to mediators. Conclusion Mediation gives people a quick way to work out their differences while addressing everyone's needs and interests. The privacy of mediation can make it easier for people to discuss emotional matters. Because the decisions reached are created by the people who are in conflict, not imposed on them by a judge, compliance is much higher in mediated cases than litigated cases. Mediation is always less expensive than going to trial and services are sometimes available free of charge. >>Mediation Home >>Researching Local Programs & Experts >>Planning Your Program >>Choosing Mediation Over Litigation >>Tips for Preparing for Mediation >>Questions to Ask Yourself if You Are Considering Using Mediation >>Tips on Settling Parenting Issues >>Tips for Speakers >>National Dispute Resolution Organizations >>Additional Resources Reaching the Community Home | Practical Law Presentations Home