Is Mediation Right for You?

For years, mediation has been gaining on litigation as the vehicle for settling divorce cases. There’s a common misconception, though, that mediation means two people meeting with a neutral third party, without attorneys, to reach an agreement on their own. However, in high-stakes divorce cases, attorneys are present with their clients in every phase of the mediation process. 

At Berger Schatz, we’re enthusiastic advocates for mediation whenever possible because it offers both parties more creative solutions and more control over the outcome. It is an effective forum for minimizing conflict and cost, as well as preserving privacy. By contrast, litigation takes place in a courtroom — a public forum — which means everything from family issues to assets that are disclosed in court becomes public record.

Meditation is a forum that must be proactively selected by both sides, and a commitment to settling out of court must continue throughout the process to reach a consensus. Neither the attorneys nor the mediator can want to settle more than the divorcing spouses. As the ultimate decision-makers, both parties must embrace the process and come to a mutual agreement to avoid litigation.

Depending on your situation and preferences, you may be a good candidate for mediation. If so, here are the steps for navigating the process successfully. 

Prerequisites for Success

1. Mutually Commit to an Out-of-Court Settlement

The outcome of a mediation is mostly driven by the commitment and motivation of the parties involved. The advantages of mediation — more creative and private solutions and less contention — also need to be the goals both parties strive toward. It only takes one person to lose sight of those advantages for the process to break down. Litigation is an adversarial, distant process, whereas mediation allows both parties to approach the unwinding of their legal relationship through immediate negotiation. If everyone in the mediation process is fully committed to resolving the divorce outside of the courtroom, mediation is far more likely to succeed.

2. Be Willing to Engage in the Process

Both parties also need to be willing to discuss the issues surrounding their divorce — sometimes more than would be discussed in litigation. Courts have limits on what they can and cannot consider in divorce cases; mediation does not. That allows for more creative solutions which wouldn’t be possible in court, but which may require the parties to be willing to delve into issues courts do not treat.

Mediation gives everyone involved more control over the outcome, leading to a greater chance of an agreement both parties find acceptable and a greater likelihood that both sides will abide by once the divorce is over. If everyone involved understands the impact litigation will have on themselves, their children and even their balance sheet and is committed to avoiding those risks and engaging fully in the process, mediation can be effective.

3. Select a Lawyer Who’s Aligned with Your Goals

Selecting the right team is also vitally important because mediation is a purely voluntary process built on a spirit of cooperation. An attorney with a sense of commonality and cooperation will be more likely to minimize rather than inflame whatever differences there are between the two parties during mediation. 

It’s also the attorneys’ role to ensure their clients make informed choices by having complete information and a full understanding of the risks of not settling. They should empower the parties to make decisions and shape their own futures. A satisfactory settlement means different things to different people, and only the clients can decide what it means to them.

Picking the right mediator is also crucial. In litigation, a judge is assigned to the case and determines the outcome. In mediation, the parties determine the outcome and get to choose the mediator who facilitates a resolution. Good, experienced mediators are guardians of the mediation process. They help with spotting issues and brainstorming, as well as keeping the flow of communication moving forward positively.

Your attorney should make suggestions for which mediator would be suitable for your case based on the issues presented and the personalities involved. In the end, if the attorneys and the mediator are committed to keeping their clients out of court, they can guide them to a resolution that addresses their personal, financial and privacy needs.

In short, the success of mediation hinges on the true motivations, commitments and values of the clients and attorneys and the skill of the mediator. Sometimes, even under what appear to be ideal circumstances, an agreement cannot be reached and litigation becomes necessary. But even if the mediation fails, time is not wasted. Much of what was discussed can be used in the litigation process without having to start from the beginning. However, if everyone comes to the table with the right mindset and commitments, mediation is much more likely to succeed, saving both sides money, time and additional emotional stress.

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