What is Mediation?
Mediation is a means of conflict resolution that allows parties to take their dispute out of the courtroom and into a private setting. Mediation can be used in any sort of civil case, but it is more often used to resolve divorce cases.
Apart from cases where crimes are uncovered, mediation sessions are wholly private and the transcripts, evidence, and other discovery documents are not entered into the public record.
One of the more attractive aspects of mediation is its informality. Participants are not bound by the formalities of courtroom protocols, do not sit under judgment of a judge or a jury, and can feel free to express themselves and their grievances in a safe and supportive environment.
Mediators strive to keep proceedings civil, but through this alternative dispute resolution process people are able to heal many of the wounds that brought them to the point of litigation.
How Does Mediation Work?
The nature of the mediation process is less formal, where everyone involved must work towards the mutual goal of a peaceful resolution to an unworkable relationship. Thus, mediation works by means of mutual respect, open communication, and clear feelings regarding the case.
Neutrality is a key feature of mediation. The mediator him or herself is a person who does not sit in judgment, but provides an atmosphere of facilitation and comfort for the participants. The mediator works with disputants to help them discover the most important issues. He or she may employ a Socratic method of asking questions to help the parties discover what it is they really need. From that process, a list of priorities are unearthed.
Once a couple's core issues are discovered, a good mediator walks them through their various options. With the options on the table, the parties can discuss them and weigh their merits while relying on the impartial expertise of the mediator to help them make the best financial decision.
Mediators help parties create resolutions that are satisfactory to everyone. The final divorce decree that emerges from the mediation process is a document that results from collaboration between the parties, the mediator, and attorneys, if involved.
Mediation Versus Collaborative Divorce: What's the Difference?
While parties do not need to hire attorneys for a successful mediation process, it can be helpful to retain legal counsel. Attorneys have the legal know-how and experience with divorce cases to help parties approach the mediation table fully aware of their rights and responsibilities. They can also provide valuable tips on negotiating an optimal outcome. This is formally known as a collaborative divorce rather than a pure mediation.
Collaborative divorce can be helpful, especially when both parties are not equals in the area of law, finance, or other area. One party, for example, might be a high-powered corporate financier and/or highly skilled with negotiations and the intricacies of financial instruments. Whereas the other party might require an attorney to help level the playing field. However, there are significant differences between collaborative divorce and mediation.
Attorneys are skilled in the art of persuasion, and they can provide a full range of possibilities to their clients. Mediators, on the other hand, fully inform the participants of their options, rights, and responsibilities. With that information, the parties can discuss and decide a course of action that is pleasing to both. Mediation participants have full agency over the outcome of their case. They can make all the decisions and never walk away with an outcome that they have not fully agreed upon.
Collaborative divorce also takes on the characteristics of a courtroom case in that it requires more than the two parties and a mediator. Collaborative divorce resolution involves outside experts, such as childcare experts, financial consultants, and therapists. More experts may be called as needed. Therefore, a collaborative divorce can become far more expensive and complicated than a standard mediation.
If, for instance, the two parties with their respective attorneys are unable to reach a mutually agreed-upon divorce decree, the mediator may fire the attorneys, requiring the parties to either proceed with a standard mediation, go to court, or hire a new set of attorneys. Failed collaborative divorces often go to trial, where the expense rises precipitously. Here is a comparative cost breakdown between the three divorce options:
- Mediation: $4,500 - $7,500
- Collaborative Divorce: $25,000 - $50,000
- When Collaboration fails and the case is adjudicated: $78,000 - $200,00
Benefits of Mediation
Here are 6 benefits of mediation:
- Cost. Mediation is a fraction of the cost paid in collaborative or courtroom divorce cases.
- Privacy. All documents related to a mediated divorce are kept private. Divorces settled in court will have all evidence, including financial documents, entered into the public record for anyone to access.
- Speed. A typical mediation process lasts between 2 and 6 months. In contrast, collaborative divorce proceedings can take up to 14 months, or longer.
- Informal. The informal nature of mediation means that the parties are able to create a divorce decree that fits their unique situation. Judges are likely to work from boilerplate solutions that are uncomfortable to the parties.
- Resolution. Even cases fraught with high emotion can be resolved. As the process unfolds, contentious parties can settle more than their financial or custody issues. When parties are able to heal some of the emotional wounds, the whole family can heal.
- Enforceable. The final result of a mediation process is fully enforceable. Once both parties agree on a document, it is filed with the court, and a judge reviews its legal efficacy. Once that step is passed, the results of mediation are just as valid and enforceable as those arrived at through a court case, or other methods.
Contact Applied Divorce Solutions
Donna Smalldon, founder and owner of Applied Divorce Solutions, is a Certified Financial Planner (CFP) and divorce mediator, who provides alternative dispute resolution services for couples who have complex financial portfolios.
Serving the Portland metro area, her financial expertise helps couples openly communicate and reach amenable agreements when it comes time to divide the marital assets.
Complete the form below to speak with Donna today and learn more about how you and your family can move forward in life.