Mediation is a process in which the parties to a dispute (the inability to agree on a solution to a conflict) select a neutral individual to assist them in their discussions and attempts to negotiate a resolution of the dispute. The person chosen to be the mediator usually has special expertise or experience in the matter being contested. In the case of matrimonial and family conflicts, mediators are usually lawyers specializing in family law and/or mental health practitioners specializing in the unique parent and child issues of marriage, separation, and divorce. Both lawyers and mental health professionals receive special training to do this type of work.
The goal of mediation is to settle the dispute, and to settle it in such a way that both sides believe that, although not perfect, the agreement is in the best interests of the children and “good enough” for both sides to live with. The process requires that the parties are open to resolving their difference via compromise rather than “winning.” Couples seeking mediation must make a decision about the level of confidentiality they will adhere to. In this respect, mediation is decided to be either “closed” or “open.” Where closed mediation is chosen the mediator will not voluntarily disclose to anyone who is not a party to the mediation, anything said or material submitted without the consent of all parties. In addition, the mediator cannot testify in court and the entire content of the mediation process is not admissible in court. Where open mediation is chosen, the parties agree that the full disclosure of both the process and content of the mediation may be made available to all parties, counsel, and the court. The mediator may also be called upon to testify.
Mediation has increasingly gained in popularity as the foremost dispute resolution method turned to as an alternative to court room litigation. It is frequently faster, less expensive, certainly not as formal, and often results in less of an adversarial atmosphere. Of course, not every conflict can be successfully resolved via mediation. In these instances the parties may then turn to arbitration or choose to go to court. If the parties do reach an agreement on some or all of the issues, the mediator will prepare a Memorandum of Understanding (parenting plan) with respect to those issues agreed upon. If the parties fail to reach an agreement, no report will be written. In our experience, couples who resolve their differences via mediation tend to walk away from the process with a better mutual relationship than those who engage in a traditional court proceeding.