Mediation Defined and the Role of the Attorney

The process of divorce, child custody and other family law-related matters are stress inducing and emotional for clients; litigation and trials can make that process harder on the individuals involved. Therefore, many attorneys have looked to mediation as a way to reduce these hardships. Mediation is an alternative dispute resolution that utilizes a trained, neutral, third-party mediator to enable discussions for parties to work towards an agreement. The mediator listens to each party and attempts to facilitate an understanding of each parties’ viewpoint. Mediations in family law are used for situations such as prenuptial and postnuptial agreements, divorce, child custody, and parenting disputes. Attorneys are usually present before, during, and after mediations to aid their clients in understanding the options presented to them while also explaining any legal concepts discussed. Further, the attorneys set their client’s expectations for the mediation and draft an agreement once the mediation concludes, containing all the details of the compromises reached.

The Positive Outlook

Mediations are used as a practical way to reach the goal of both individuals and to avoid the uncertainties of litigation. In family law, mediations are usually less adversarial and a more cost-effective approach to reaching agreements. Mediations give the parties an opportunity to discuss their issues in a less-formal setting than a court, while still granting each party the option of walking away, at any time, during the process if they are not satisfied with the result. The mediator’s input allows the parties to hear one another more clearly because the explanation is from a neutral standpoint, rather than feel attacked by the person with whom they are having the disagreement. The majority of the time, after a full day, or days, of discussion and trying to understand the other party’s perspective, an agreement is reached. The parties have gone back-and-forth for hours, and sometimes days, at this point to explain what they need and where they are able to compromise.

Mediations are also a way for the parties to control the outcome of the divorce. When in court or at trial, the outcome is never certain because the decision is in the hands of the judge. Mediations are a way for each party to express what they expect, want, and need. The parties work together to reach an outcome both can agree on. Essentially, when litigating family matters, the outcome favors one party, whereas with mediations, there is an opportunity for both parties to have an outcome that, in some way or form, favors them. Ultimately, mediation can be an excellent forum for parties to resolve their differences in family law matters while achieving certainty of results and preserving the fabric of the family as well as preserving the marital estate.

Thomas T. Field, Partner