Family law mediation involves a collaborative approach, where the parties can decide whether to use lawyers, each having their own, one party has a lawyer, or the parties may decide to resolve all conflicts without the use of any individual lawyers.
Instead, the mediator, who is also a skilled and experienced family law lawyer, may be able to mediate the conflict to an acceptable resolution. The final result may be an executed agreement with independent legal advice being sought by the parties, or if they choose not to proceed with independent legal advice, they decide that the agreement is understandable and to their satisfaction, without the need for engaging a lawyer. These are all the types of choices that can be made in the mediation process.
Mediation is a voluntary process where a trained professional, called a mediator, helps participants to negotiate a mutually acceptable agreement. The decision to mediate is completely voluntary. You’re in it because you choose to be. A mediator, unlike a judge or arbitrator, will not make decisions for you. You and your partner decide what will happen to your family. The mediator will act as a facilitator and referee, to help guide you regarding personal decisions for your lives and those whom you love. The key is: You and your partner maintain control over the outcome.
Each party describes the dispute from his or her own point of view and offers possible solutions. The mediator helps the parties to focus on the real issues causing the problem and then helps them to find a workable solution(s). When the parties arrive at an agreement, the agreement is put in writing.
Contact us to schedule an intake meeting. If you have a lawyer, ask him or her about mediating your case. If the other party also agrees to try mediation, either your lawyer or you should schedule an intake.
While many problems can be resolved in mediation, you can discuss with your lawyer or mediator whether or not the issues in your case can be mediated. Cases involving on-going domestic violence should almost never be mediated.
If one party is a stronger negotiator, mediation helps balance the power. When couples express hurt, fear or anger, mediators talk about the needs behind the feelings. They reframe the issue to help the couple focus on a mutually acceptable solution. Mediation supports the healing process; helps you focus on your future; eliminates aggressive bargaining and legal games; prioritizes the well-being of the children and addresses the parties’ needs and interests. You have a voice in the process.
√ It works. A good deal of mediations end in agreement as the parties are motivated to find a resolution.
√ It’s affordable. Parties generally agree to split the cost of a mediator. Cases mediated early may avoid costly litigation.
√ It’s quick. If conducted early, mediation may result in settlement far quicker than waiting until near trial to settle.
√ It’s private. Almost everything disclosed during mediation is confidential and cannot be used in a lawsuit.
√ It’s impartial. Mediators have no stake in the outcome. Their role is to facilitate the resolution of the complaint.
√ It’s cooperative, not adversarial. Mediation provides a comfortable, safe, and respectful setting for discussion. It is nowhere as combative as court cases can become.
Closed Mediation is usually “without prejudice” and “confidential”. Without prejudice means that everything said during the mediation, subject to certain limited exceptions, is legally considered a “without prejudice settlement discussion”. Neither party nor the mediator may give evidence in a legal proceeding about what was said during mediation; only the terms of any final and binding settlement may be disclosed.
Parties in closed mediation usually agree, as well, that their negotiations will be confidential, meaning neither of them, nor the mediator, will talk to third parties about what happened in mediation. Such confidentiality provisions usually allow the parties to discuss the mediation with anyone whose advice is required, such as their lawyers or accountants.
Most parties prefer closed mediation because they feel freer to express views and concerns and discuss options without the fear that what they say will end up being used against them somehow. Many parties also feel that entering into a closed mediation agreement helps build trust between them.
Open Mediation is generally neither without prejudice nor confidential. In open mediation, it is understood that either party or the mediator may give evidence in a legal proceeding about what happened during the mediation, including evidence about what offers were made.
Some parties prefer open mediation, particularly if they doubt the good faith of the other person. By agreeing to open mediation, parties can demonstrate to the other that they are willing to do what the other needs, in terms of process, to try to reach a resolution.
Because of the distinct differences between open and closed mediation and because of the different definitions of open mediation, it is critical that parties considering mediation first enter into a mediation agreement with each other and the mediator, so that everyone understands the ground rules.
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