What is mediation?

Mediation is a process in which the parties to a divorce (or some other dispute) try to resolve their disagreements outside of court with the help of a mediator. The mediator cannot force a settlement, but tries to assist the parties to clarify their interests and work out their own solution. In divorce actions, mediators are often involved in custody and visitation disputes. They can also handle property disputes, support disputes, and other issues. If the parties resolve their disagreements through mediation, the lawyers for both the parties should be involved in finalizing and approving the agreement.

Is mediation mandatory in divorce actions?

That depends on the rules of the local court. Many courts require mediation of custody and visitation disputes--the mother and father must talk with a court-appointed mediator to try to resolve the problem before putting their case before a judge. The mediator cannot force a resolution, but the parties can be told to try mediation before coming to court.

What is the professional background of divorce mediators?

Most mediators are either lawyers or mental health professionals. Some court-related mediators have degrees in social work or psychology. Private mediators are often lawyers, although many are mental health professionals. Mediators who are mental health professionals are not serving as therapists, and mediators who are lawyers are not serving as lawyers. Instead, they are professionals who are trying to help two (or more) people work out their differences. Mediators are generally not licensed or regulated by the state, although the ABA has adopted standards and many states do have some certification for court-mandated mediation.

What are the advantages of mediation?

Mediation often is cheaper and quicker than taking a case before a judge. A good mediator can help the parties build their problem-solving skills, and that can help them avoid later disputes. Most people who settle their cases through mediation leave the process feeling better than they would have felt if they had gone through a bitter court fight.

What are the disadvantages of mediation?

Mediation can be a problem if one or both parties are withholding information. For example, if the purpose of mediation is to settle financial issues and one party is hiding assets or income, the other party might be better off with a lawyer who can vigorously investigate the matter. Mediators are usually good at exploring the parties' needs, goals, and possible solutions, but mediators do not have the legal resources of a lawyer to look for hidden information.

Another problem with mediation can arise if one party is very passive and likely to be bulldozed by the other. In that situation, the mediated agreement might be lopsided in favor of the stronger party. A good mediator, however, will see to it that a weaker party's needs are expressed and protected. Mediators should refuse to proceed with mediation if it looks as though one side will take improper advantage of the other.

Some professionals think that mediation is not appropriate if the case involves domestic violence. One concern is that mediation will just provide a forum in which the abuser can harm the victim again. Another concern is that victims of physical abuse are not able to adequately express and protect their own interests. However, other professionals believe that disputes in families with a history of domestic violence can still be mediated, particularly if the abused party is not significantly intimidated by the other party.

A final potential drawback to mediation is that if mediation does not succeed, the parties may have wasted time and money on the process and still face the expenses of a trial.

American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association