Mediation differs from litigation before a judge because the parties get to decide the outcome. A mediation is simply a negotiation between the disputing parties assisted by a trained, neutral go-between called a mediator. If you don't agree to settle, the dispute is not over, and the mediator can't decide otherwise. The mediator does not make decisions or provide legal advice. Instead, a mediator helps guide the parties to a mutually agreeable solution. In terms of self-determination, no one knows one’s own family better than the family members themselves, so they have a better understanding of what works and what doesn’t. For parties with a family law dispute, a number of ways make mediation a preferable approach to the problem. Here are a few considerations:
- You Get to Pick Your Mediator
As a voluntary process, both parties have to agree to the mediator. In a court case, the judge is assigned to the case, and the parties have little to no say in who will be making the critical decisions about dividing assets, custody and other matters that make up a family law dispute. The perspective of the judge, or a unique aspect of the case, can make for a higher risk in court. On the contrary, a private mediator can be selected for personality, style, technique or any other criteria that matter to the parties. In addition, the process of agreeing to mediate and selecting the mediator constitutes the first compromise, setting the stage for further work to resolve the dispute.
- You Get to Keep Your Privacy
Court records are public documents, available to be seen by anyone and court hearings are open to the public. This means that the information going on the record and revealed in court cannot be kept private. In a mediation, the parties can exchange information and reveal facts that are extremely intimate without worrying about publicity. Furthermore, the privacy of mediation extends even if the mediation process breaks down. Nothing said in a mediation can be used in court with a few exceptions. This means, if statements or concessions are made in the course of a mediation, and the parties end up in court anyway, then neither party can use this against the other.
- You Get to Have A Voice
In mediation, the mediator will take time to hear you out. There are no rules of evidence, objections, or courtroom cross examinations to get in the way of speaking your piece. It may be that the sticking point in resolving the dispute is a “side” issue for one party, and a critical issue for the other. Allowing both parties to voice their issues in the course of the mediation can help process the dispute and allow for creativity in seeking a resolution. Often, being heard is as important to the parties as the issue itself. Mediation provides the space for the parties to express themselves. Additionally, if the parties agree, collaterals can be brought in to be part of the process to help reach a resolution.
- You Get to Manage the Cost
Litigation is a long, drawn-out, expensive series of activities with the risk that the judge does not decide in your favor. A mediation takes less time, and the parties are generally committed to finding a resolution in a fast, and efficient way. This means that mediation costs less than battling things out in court. Investing in an early mediation or taking time out in the middle of an active case to try mediation, will often be money well spent.
- Attorneys, Results and Getting Closure
Here are some wrap-up issues to consider: Hiring your own attorney for mediation is not required. Not having attorneys reduces the number of voices in the room and reduces the cost by avoiding the attorney fees. However, you may want to have counsel as you go through mediation. Certainly, before signing an irrevocable agreement, you will want to have an attorney review the terms, even if you don’t use an attorney during the mediation. An attorney can help translate the mediator's style, approach and technique. An attorney can give you legal advice and educate you about your best outcome. Speaking of 'best outcome' - the hard truth is that a successful mediation requires compromise, but unlike the outcomes in court, the parties can create a resolution that is livable. And, best of all, if the dispute is settled, the parties can get on with their lives.
To learn more about how Reese Law provides mediation services as well as representation in mediation, click here.
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