Free Mediation Course Blog

Divorce can be a painful experience. Even if you’re the one who started the proceedings it’s still a tough emotional time to get through. divorce mediators can help both people negotiate a good agreement, with less stress than is normally associated with divorce settlements.

Remember Mediation won’t save the marriage. It’s not going to try to get you back together. A mediation is a neutral third party method to help you put the past behind you and assists you in negotiating a fair settlement.

Also, divorce mediators are not an arbitrators. A mediator can’t make decisions for you, that much is up to you. The mediator is there to help control the situation and understand that in many cases emotions can be raw.

Using divorce mediators can save you time and money. Working through a lawyer is time consuming and expensive. Using mediation and working out your settlement has many advantages.

First, a mediation is designed to gather background information regarding the situation and determine any problems. Then both parties should give the mediator financial information such as; Superannuation, real estate owned both in joint names and single names, retirement funds, investments, car, boats, etc. also any outstanding debts such as mortgages, loans, credit cards. This can be done together or separately.

With this stage completed the mediator needs to know about placement for children, visitation for the non custodial parent, and any alimony and child support. Also the division of property as in who gets the family home, who gets the holiday cottage, the division of other debits and the income of each party.

When all the information is on the table the mediation helps the parties negotiate a fair agreement. At this stage there will be tradeoffs, such as “you can have the boat but I want the SUV”.

Many times these scenarios aren’t acceptable so they are changed and negotiated until an agreement is reached that suits both parties. The Mediation, while not making decisions for the parties often gives them ideas on to how to balance things and come to a compromise.

Once both parties are satisfied and preliminary agreement it’s drawn up for your lawyer to look over. Once all revisions have been made to the satisfaction of both parties then a formal agreement is signed and is binding. Your lawyer will be able to advise you on the laws of each state regarding these documents.

Using a Mediation can make a nasty divorce into one with provisions more amicable to each party. It also can make it easier for you and your spouse and any children.

As families begin to confront the decisions involved in how to best care for a loved one who no longer is able to live alone, who requires assistance with daily living, or requires medical care, family relationships are becoming increasingly strained. According to Susan Butterwick, Esq, Directing Attorney for caregiver mediation projects for the Center for Social Gerontology, Ann Arbor, MI.; mediator and mediation trainer, “this is one of the most difficult dilemmas our society, families, caregivers and elders face. Families often find themselves on opposing sides in a courtroom involved in contested litigation over how best to care for a loved one.”

Indeed, today family conflict is not uncommon – especially when care needs are great. This is the first in a two-part series on mediation. What mediation means, how the parties in the mediation process resolve conflict, the value of mediation will be presented along with helpful websites to access. A follow-up sequel (Spring 2003 Guide) will explore the specialization family caregiver mediation and explain how this process helps to salvage precious family ties while coping with caregiving issues for a parent or another significant other.

Mediation has been recognized in Ohio for over twenty years. It is an informal, confidential process held in a private setting in which a neutral third party (mediator) helps people to better understand their individual interests and needs then to develop and agree on a workable solution to their problem(s).

Mediation is different than other alternative dispute resolution processes in the following ways. Usually, a negotiation involves the opposing parties and there is not a neutral third party. Arbitration uses a neutral third party who actually makes the decision on how to resolve the conflict. Litigation is far more expensive and time consuming than mediation and involves a judge who makes the final decisions. According to Butterwick, in litigation and arbitration, there is usually a “WINNER” and a “LOSER.” In mediation, however, the goal is for opposing parties to work toward a “win-win” solution; the mediator has no decision-making role in the mediation process. Mediation may be voluntary or court ordered. Butterwick adds, “if it is court ordered, the parties are ordered only to show up for the mediation and the rest of the process is voluntary”. It is confidential in either case.

The mediation process has several advantages. A main advantage is that the parties retain control over the decision(s) they choose to agree to in writing. Also, results are generally win-win because outcomes fit the needs and interests of the opposing individuals. Because the outcomes also reflect the party’s choices and priorities, in turn, there is a higher level of compliance (80-85%) with the written agreement than with court judgments which according to Butterwick is much lower.

The beauty of mediation is that individuals are validated and empowered by the process. The way one sees a deeply felt problem is deemed as equally important as the other’s view. The same is true for the options offered for resolving the problem. Anxiety can lessen as the opposing parties are treated and communicated with in a compassionate, courteous, respectful manner. Another plus is that the groundwork is laid for improving the overall relationship as the parties work out their differences with the help of a neutral third party.

A mediators can be court staff, volunteers at mediation centers, attorneys and private practice mediators Fees can vary widely (see www.mediate.com.) For a Consumer Guide on selecting a mediator see www.state.oh.us / Useful Resources. Topics of disputes are numerous. Some include business, contract, landlord/tenant, property damage, neighbor issues, domestic violence, discrimination and other workplace issues, intellectual property, real estate, personal injury, malpractice, victim- offender, civil rights, special education, divorce, child protection, family issues, and adult guardianship.

According to Butterwick, family caregiver mediation is a relatively new outgrowth of adult guardianship mediation being explored and implemented by The Center For Social Gerontology who has found the need for mediating effective solutions to address problems that arise in family caregiver situations is significant.

Caucus-style divorce mediation is a growing form of mediation. It is a type that many lawyers have defined and used as a similar situation to a settlement conference. The problems with caucus-style mediations are that it shifts too much power away from the husband and wife and to the hands of the lawyers and the mediator.

A caucus-style divorce works by allowing people to stay out of a court-room. This is, frequently, a good move as it keeps the settlement in the hands of the divorcing parties and removes a judge’s decisions. The first step to this process is the client and lawyer teams each spend a lot of time and money gathering information, interviewing witnesses, probing financial records, and completely preparing the case for trial. Once this is completed, the mediation process can begin.

The mediation process starts with each team submitting a position to the mediator detailing the wants and needs of the client. This position may or may not be shared with the other side. Once the positions have been received, both client/lawyer teams meet in the same room with a mediator. The opening positions are shared and then each side retreats to a different room for the remainder of the process. The mediator then takes proposals and messages from one side to the other. After each proposal is submitted, the lawyer and his or her client discuss the entire thing and then the mediator goes back to the other room with the response to the proposal. It is a very time-consuming process that can take numerous hours.

Eventually, the two parties reach an agreement and the divorce process has been complete. This process generally takes between 8 and 12 hours but can last as long as 15. It is an exhausting process for everyone involved.

While this style of mediation does have its problems, it is an excellent option for a couple where there has been on-going domestic violence or abuse. It is in the abused individual’s best interest to stay separate from their former spouse. This prevents contact between the two spouses and also removes the opportunity for verbal abuse or intimidation. It is much more difficult to intimidate someone if they are in a completely different room from you.

1. The best predictor of the well being of children involved in a divorce is the amount of conflict between parents. In mediation, conflicts are more likely to be resolved, resulting in a more peaceful post-divorce family life.

2. Mediation helps parents create truly thoughtful and child-focused parenting plans that are tailor-made to suit their children’s changing emotional, developmental and temperamental needs as well as the family’s schedule.

3. By thinking through and discussing the parenting plan, possible problems can be identified and resolved before the final judgment is entered by the court.

4. Mediation creates opportunities for parents to work together and build on their strengths as they redefine the parental unit within the family. Parents who can model good conflict resolution skills for their children raise children with better conflict resolution skills.

5. A detailed parenting plan sends a message between the parents and others, including the children, new partners, school and court personnel that parenting is an important priority for both parents, even if one parent assumes more hands-on time with the children.

6. A detailed and thorough parenting plan pre-empts back and forth, ‘He Said/She Said,’ arguments if differing views of the co-parenting history emerge.

7. Agreements, including modifications, create a record, or ‘paper trail,’ of what was mutually agreed to when one or both parties were thinking more clearly about the issues involved in successful and co-operative co-parenting.

8. A detailed parenting plan sets forth a method to resolve differences without going to court in case you need to modify the parenting plan when things change, or if new partners, or reluctant children, want to unilaterally change the plan.

9. When co-parents deviate from the parenting plan and then fall into disagreement, a detailed parenting plan provides a useful backup plan until they return to mediation.

10. Mediation provides both parents with the opportunity to explore co-parenting issues with an objective third-party neutral who is a professional trained in children’s developmental needs and is knowledgeable about the research on children’s adjustment to separation and divorce.

By Tara Fass, LMFT and Diana Mercer, copyright 2005

One of the hardest jobs of a mediator is to give a good response to the parties’ concerns. After mediating thousands of cases, I have heard a lot of questions and concerns from the parties. The mediator has to give a response that informs without alienating one or both parties. Here are some responses that a mediator can make. They are not the only response but what I consider a good response.

A. Comments Made to the Mediator

Righteous Party: Just decide who is right or wrong

Mediator’s Response: That is not how mediation works. A mediator cannot decide who is right or who is wrong. In mediation, the parties decide what is right for them and how they will resolve the case. I only work as a facilitator and I do not weigh the evidence and determine who should win.

Suspicious Party: You are taking his side.

Mediator’s response: I am by definition a neutral third party. Sometimes I play the devil’s advocate and give the parties a reality check or suggest different alternatives. However, that does not mean I am taking sides.

Uncertain Party: What would you do?

Mediator’s Response: Generally I don’t like to give my opinion because it is really the other party’s opinion that counts, not mine. However, since you asked me, I would give the other side the benefit of the doubt.

Impatient Party: This is taking too long and is a waste of time.

Mediator’s Response: I know you think this is taking too long, but we are following a process. Sometimes this can take time, but it cannot be hurried.

Unsatisfied Party: You don’t know what you are doing! Where were you trained?

Mediator’s Response: I am doing my best and I am always open to suggestions. I am not sure why you are asking the question, but I am certified by the Florida Supreme Court in County Mediation and have conducted over 6000 mediations. Not all mediations are going to be successful. It often depends on whether both parties are willing to work on finding a solution.

Annoyed Party: You don’t understand.

Mediator’s Response: Maybe I don’t understand. Can you try one more time to explain your position? Maybe I am missing something.

Party wants to quit: I don’t want to continue the mediation.

Mediator’s response: Mediation is by definition a voluntary process and you can decide to discontinue the mediation at any time. Do you want me try one more time to see if we can resolve this or do you want me to close the case now?

If you are contemplating a divorce or are in a period of separation, it can be a scary time in your life. There are many uncertainties: what about the kids? who gets the house or car? how will I be able to live? how does all of this work? In the past, it has been the case that a divorcing couple would each seek a lawyer, and go out to battle. A long, expensive, painful battle. It does not have to be this way. Many divorcing couples these days use mediation as a dignified, reasonable and affordable way to divorce, without war and disaster.

So what is mediation, actually? Mediation is the process in which a trained neutral person, called a mediator, facilitates the resolution of a dispute between two or more parties. Mediation is non-adversarial with the objective of helping the parties reach a mutually acceptable agreement.

There are many advantages in using mediation in place of the legal proceedings where the parties become adversaries.

Here are some of the issues that would be addressed in mediation:

1. The restructuring of the family unit: the parties must reach agreements on issues such as living arrangements for the children, child care, parenting, parent access, and education.

2. Financial issues: both spouses must plan their financial futures and decide how their children will be supported, whether either spouse needs support (alimony), how property such as homes, bank accounts, pensions, retirement accounts, and investments will be divided.

The mediator, through training and specialized knowledge, facilitates the parties in addressing all of these matters. Where appropriate, the mediator may recommend that the parties also use the services of experts in addressing specific issues.

In the New Jersey family court system there is a tremendous pressure to settle divorce cases. There are too many divorce cases, and not enough judges to have a trial for all of them. 98% of divorce cases are settled before a trial. Going to trial is very expensive: legal fees can be high, the parties will have to spend a significant amount of monies on expert witnesses to testify at trial. The parties will also have to produce real estate appraisers, pension experts, stock market experts, business appraisers, and or accountants. These experts are not cheap, and they charge thousands of dollars to come to trial and testify. Therefore, in most cases it is a win-win situation if a reasonable settlement can be achieved through mediation.

Here are some excellent reasons for choosing mediation:

1. A mediated divorce often costs less than 1/3rd of a litigated divorce
2. Mediation can finalize a divorce in much less time than litigation: months versus years
3. You lose none of your rights by mediating
4. Mediation is confidential
5. Make decisions about your future for yourself
6. Parties are more satisfied with terms they agree to in mediation than terms imposed by a court
7. Agreements obtained through mediation are far less likely to end up back in court
8. Mediation is a constructive, forward looking process (where do you go from here)
9. Mediation can be used to resolve many types of disputes, including the dissolution of gay and lesbian
10. Mediation allows you to get on with your life more quickly

The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or highly opposing positions.

Today, parties litigate because they know of no better alternative. However, as the benefits of mediation become more widely recognized, it will undoubtedly become the most utilized tool for divorce and separation in the future.

Mediation provides a cost-effective way to adjust post-divorce child support obligations.

In divorces where the parties have children in common, the final judgment will include provisions for the payment of child support. A common problem is how to adjust child support obligations when you are the one paying it and you’re making less money than when child support was originally calculated.

Most states provide a procedure to calculate child support which is really a formula. This procedure takes into account changes in the income of the paying spouse.

If you’re the one paying it and need to lower your child support payments, speak to your former spouse about using the services of a family mediator to calculate a new child support obligation.

The process is no different if you are the parent who receives child support and want to adjust support because the needs of the children have gone up or because your former spouse has a higher income than when the obligation was established.

While a mediator cannot give you legal advice on questions regarding child support, he or she is usually trained to perform the child support calculation required to compute child support. Both you and your former spouse can meet with the mediator to perform the calculations. The mediator will need information such as the income of both parties, and may need certain other items related to the children’s expense.

Once the calculations are done, if both you and your former spouse agree, you can enter into an agreement and take that to court.

To find out more about the benefits of family mediation, download this free guide on divorce mediation All the benefits of using mediation listed in the guide are applicable to post-divorce matters.

Family Mediation is a process to resolve the family disputes that involve a divorce, which provides consolation, support and help both the parties to reach an agreement. Though all the settlements regarding properties and assets are done by the court but there are other issues such as child custody, visitation schedule and other litigations that involve after divorce.

Post divorce, our state of mind usually fails to cooperate to bring about a solution because of the negative impact of the divorce. Sometimes, because of the anger, bitterness and resentment that you feel, you might voice or say something which might mar your settlement after divorce and might lead to further disputes.

Mediation helps to cope up with all the emotional stress and saves you from all the litigation costs. However, when we bring in the issue of saving a few bucks during the divorce process, it may sound a bit awkward but the fact remains that the less you spend on the process the more you will have to start a new life and if you have children that you will have sufficient resources.

What usually happens in the process of getting a litigated divorce is that you end up paying hefty sum to the lawyer and solely depend on him/her to resolve your issue which is usually a slow process and may even take ages. Through mediation, you and your spouse work together to bring about the resolution with the help of a family mediator who could be a lawyer, social worker, psychologist or some other professional. And this cuts down your expenditure in hiring a lawyer, speed up your process and both of you work together to resolve the problems you might have.

Settling things through mediation also saves you from the entire emotional trauma and financial roller coaster, which you are likely to go through if you drag the issue to the court. Apart from this it might help your children a great deal in coping up with your separation. Major upbringing decisions regarding your children could be brought about.

You can go for post divorce mediation without using your attorney, just the way you had opted for divorce mediation. Though, you should consult with your attorney about the decisions and resolution that is being brought about through the mediation, to get a fair idea about it, before you sign on the papers.

Post divorce mediation is the most effective way to settle disputes that revolves around divorce even after the final judgment. However, it may not be suitable for all individuals especially in cases where one of the spouses has been subjected to abuses and violence. A party who wants to opt for family mediation must consult their attorney to get a fair idea about the law, his /her rights and other obligation. It is completely voluntary and any party can walk out of it if they are not satisfied with the proceedings.

Some couples decide they will try to reach a settlement before they file for divorce, and engage in mediation only to find they cannot come to any agreement. Other couples are never able to mediate any issue, and end up with a judgment of dissolution of marriage after months (sometimes a year or two) in litigation. In between, there are those who attempt mediation at one point, reach no agreement at first but do so at a later time short of the trial date.

What is the difference between them? And, if you want to avoid the emotional and financial impact of divorce litigation, how can you tell when you can benefit from mediating your divorce before filing for divorce at your local courthouse?

To answer these two questions, it may help you to determine what degree of trust you and your spouse still have for each other.

A certain (minimum) degree of trust between parties is important to any meaningful mediation, but more so in a family case because of the emotional ties between the parties.

Lack of trust alone can derail any mediation because the party lacking trust in the other will be weary during mediation negotiations. This can result in either a short mediation, where the distrusting party ends the mediation abruptly at the first sign of what he or she may perceive as the other party’s “game.” Or, it can also result in negotiations taking longer.

What’s more, even if a tentative mediation agreement seems to be taking shape, the distrusting spouse may doubt that the other will comply with the final agreement, and end mediation just before it seems like an agreement is a real possibility.

Depending on what leads to distrust, the passing of a bit of time may sometimes resolve the issue.

The best approach, however, is to acknowledge the feelings of the distrusting spouse (regardless of whether such distrust is justified), and to find objective references to measure compliance by either party. This allows the distrusting party to trust the process of mediation instead as well as the enforcement of the resulting agreement, if necessary down the line. This is so because the other party is not controlling the objective reference that will be used to decide whether he or she has complied with what was agreed, and thus the distrusting party doesn’t have to fear being manipulated by someone in whom they have little or no trust left.

Parties who are mutually distrustful of each other, and have chosen divorce litigation as their first step may still have a chance to mediate a divorce agreement successfully. This may come after spending months in litigation, with each party tapping and spending their marital resources to fight each other. In this instance, at least in Florida divorce courts, they will have a chance to settle before going to trial because Florida courts require all parties to go to mediation before trial. Some of these cases settle out of sheer financial exhaustion, so to speak. Of course, there are still those who do not settle and proceed all the way to trial and final judgment from the judge in their case.

Ask yourself where you are in terms of trusting your spouse. Then ask yourself where you think your spouse is in terms of trusting you. The answers here can guide you in deciding when your case might benefit most from mediation. Of course, in a Florida divorce, if you have already been ordered to go to mediation and the trial date has been set, there may be little you can do to postpone the mediation.

As anyone with even a passing knowledge of the legal system knows, going to trial is time consuming, expensive, and risky. This risk applies to both sides engaged in a legal dispute. As a result, ADR or, alternative dispute resolution, has become an effective and leading method for parties involved in a lawsuit to attempt to resolve their grievances before moving to trial. ADR typically takes one of two forms. Those two forms are arbitration or mediation.

In an arbitration hearing each side presents their case, often in short hand form to an independent hearing officer, or arbitrator, who will render a decision. As with a trial there will be a winner and a loser. If the arbitration is “non-binding” then either side may choose to reject the award and continue forward on towards trial. If the arbitration is “binding” then both sides accept the decision of the arbitrator.

A mediation hearing entails both sides appearing before an impartial hearing officer or mediator who will attempt to resolve the case. Typically both sides will meet with the mediator at the mediator’s office. Each side, including both the attorneys and their clients, will be situated in separate offices (often in a personal injury case where an insurance company is involved on behalf of their insured the insurance adjustor will participate in the personal injury mediation without the defendant present). The mediator then moves between both parties conveying offers and counter offers. As well, the mediator will advise each side on the strengths and weaknesses of their respective case and the appropriateness of the offers and counter offers based upon the actual facts of the case. Mediation has proven to be extremely effective in resolving personal injury cases. Mediation saves both parties in a legal dispute time, money, and provides a clear and authoritative result. Often this proves to be a more attractive solution to the parties than the time, expense, and substantial risk involved with going through a trial.

With all of this said, mediation is clearly not suitable in all cases. Often the parties are simply too far apart in terms of the facts, issues, and amount in dispute to make mediation a worthwhile undertaking for that particular personal injury case. As an injury attorney, my own experience is that mediation is almost always worth attempting. It’s “worth a try” to get the case settled, in less time and with a lower amount of stress involved. In the case where a settlement is not reached, one often learns valuable information about the facts and contentions as the other side sees them. To the personal injury victim I would suggest discussing alternative dispute resolution with your lawyer to see if this can be an effective tool in helping to resolve your particular case.