Mediation: What it is and how it works
Mediation versus Arbitration
In mediation, a mediator serves to facilitate resolution of differences between the individuals and in arbitration, an arbitrator will make a decision resolving an impasse between the individuals.
The mediator does not make a decision for the people involved; but the mediator does guide the discussion and facilitate the deliberations. The mediator will explain areas of law and help each person apply the law to their situation, also the mediator will share what other individuals have done in similar situations and what the outcomes have been. All this serves to inform the participants about options and possibilities. With all the options exposed, the ensuing discussions generally result in agreement and resolution with a defined course of action.
Where there is an impasse the mediator may make a mediator’s recommendation, this is not a binding edict, but just a weighing in on the impasse to help resolve the issue. In mediation, the choices always belong to the participants and remain flexible until an agreement is signed.
Mediation With or Without Lawyers
Mediation can include the use of your own outside attorney to provide you with guidance and legal advice, as well as to review any mediation agreements. An attorney that supports the mediation process can be a valuable tool for moving the mediation towards resolution. Any of the participants are free to use or not use an attorney outside of the mediation. Generally in Divorce Therapy mediation, we do not include the attorney in the actual mediation meetings.
Mediation and Forensic Accountants or Formal Discovery
Collaborative mediation is predicated on open and honest disclosure of all the facts. Collaborative mediation agreements are based on everyone knowing the same information. There is not a formal discovery process where demands are made for information; rather, there is a collaborative disclosure of all needed documents. This process works when there is honesty and transparency. The process is not available to individuals who use obfuscation of facts in order to prevail; these needs are better severed in traditional adversarial proceedings.
Complex financial issues, including business valuation, may necessitate the use of expert divorce accountants. At such times, the participants agree to use one neutral financial analyst to explore and determine the answer to these complexities. In collaborative mediation, the financial analyst is not used as an investigator and all the participants voluntarily disclose all the information needed by the financial annalist. The results of the financial analysis are then used as added information in the mediation to resolve the financial matters.
Divorce Therapy mediation costs are based on the scope of the mediation process, each situation is unique and will require unique utilization of the mediator and the Divorce Therapy process. Generally, the fees for mediation are based on the time involved.
Finality and Totality
The mediation process is able to resolve all the issues of the dispute. These resolutions are then used to create a judgment that is submitted to the court. In most cases there is never a need to appear in court, or to seek-out additional services to finalize the resolution of the dispute.
In the area of family law, mediation is able to help the participants:
1. Determine spouse support or child support
2. Determine modifications of child or spouse support
3. Establish a division of assets and liabilities
4. Create a settlement agreement for a dissolution of marriage or domestic partnership
5. Establish a legal separation
6. Construct pre and postnuptial agreements
7. Establish child visitation and parenting plan agreements
Mediation is an entirely confidential process. Generally, under California Civil Code the discussion and considerations made during mediation cannot be used in any legal proceeding. This protection serves to help the participants openly consider all possibilities in order to resolve the conflict.
The mediation process is voluntary and any participant can end the mediation process at anytime and need not defend or justify the decision to terminate the mediation. The voluntary nature of the mediation, as well as the confidentiality mentioned above, are there to make the mediation process as safe as possible for all the participants.
Flexible Until Binding
All decision and deliberation in mediation remain open and flexible, until there is a signed written agreement by all the participants. This gives mediation the flexibility to reconsider options as the process unfolds. Once all the issues are resolved and a written agreement entered into, that signed agreement becomes legally binding.