MEDIATION: RESOLVING CONTESTED ISSUES

MEDIATION: RESOLVING CONTESTED ISSUES

 

What is Mediation and What Family Issues Can Mediation Help Resolve?

      Mediation is a process where an impartial third party called a mediator, attempts to help the parties reach a mutually beneficial agreement but the mediator cannot make any decisions – the parties are the decision makers at mediation. There are two basic types of mediation: in-house and private mediation. Some characteristics of in-house mediation are that the fee for the mediation is fixed and based on the parties’ joint income, in-house mediation is much less expensive than private mediation, and in-house mediation must be done within a specific time frame at the courthouse. Mediations though a private mediator allow the parties to agree upon a mediator, the overall cost is much higher than in-house mediation since it is based on the mediator’s hourly fee and typically goes for a longer period of time than in-house mediation. In divorce cases, the mediation process can help parties resolve issues such as the division of their property and debts, alimony (if applicable), and/or time-sharing and child support if the parties have minor children in common. In paternity cases, the mediation process also encourages resolution of issues between former partners who want to resolve the rights and responsibilities that each party has with regard to their minor children. Parties with children in common should also remember that a good faith, reasonable approach will ultimately serve their minor children’s best interests.
Where Do the Parties Go If No Agreement is Reached at Mediation?

      If no agreement is reached at mediation the mediator declares an impasse, and the parties will go back to court where the judge will eventually make all decisions on the parties’ contested issues; those decisions may or may not be what the parties would have liked, but the parties will be required to abide by the decisions made for them. At the conclusion of a litigated case, especially after cases that have taken very long to conclude, couples will oftentimes acknowledge that had both parties maintained a collaborative mindset early on (a win-win approach as opposed to a win-lose approach), their issues could have been resolved in less time, and with less money and stress.
Why is the Mediation Process Beneficial?

      As indicated above, mediation is usually much less costly and time-consuming than protracted litigation. As long as the contested issues in a divorce or paternity case are not resolved, the time and money required to resolve those issues will continue to increase. Extended court battles in litigated cases can further drive up fees and delay a divorce judgment. Other benefits of mediation include:

      Confidential and Private: Mediation is intended to be a confidential process, and it is not held in a public courtroom. For the most part the parties can feel free to express themselves without having to worry about information later being used against them. Discovery of facts or statements made at mediation for use at trial is usually not permitted.

      Control: Mediation can help parties reach agreements that go beyond what a court will do. The mediation process gives the parties a great deal of control over their decisions. The parties can tailor their agreement to meet their specific needs, including designing their own parenting plan for time-sharing and vacations if they have children.

      Less Adversarial: Litigation is adversarial, and can be extremely contentious and sometimes downright nasty – where one side wins and one side loses – which often leads to very high levels of stress. Mediation helps to avoid this win-lose atmosphere, focusing instead on the issues via adequate communication and cooperation.

      Compliance More Likely: Parties who reach an agreement in which they have participated, voluntarily agreed to, and mutually settled, are much more likely to comply with the terms of their agreement than parties whose issues are decided by the courts.

      Reduce Issues For Court: Even if all contested issues are not resolved at mediation, mediation can help reduce the amount of issues that need to be presented at trial, making the rest of the process less contentious.

How does the Mediation Begin and End?

      The mediator first meets with both parties in the same room and each party is then given the opportunity to express their point of view. Since the parties will make all the decisions at mediation, and the mediator may not give legal advice to the parties, unrepresented parties are well advised to first seek counsel before scheduling mediation. Sometimes the mediator will meet with each party separately (this meeting is called a caucus). The mediator then goes back and forth between the parties facilitating information relevant to the contested issues. Once the time is up, the mediator will either declare an impasse, the mediation may be continued, or if the parties reach an agreement (on some or all of the issues), the terms are written down by the mediator in a ‘Mediated Settlement Agreement’, which each party will review with his or her attorney. Once signed, the agreement becomes legally binding (a contract), and the court will have the power to enforce it. Provided that all issues are resolved at mediation, the parties do not have to go to trial and the case may then proceed to be scheduled for a final hearing, and then closed.

      Attorney Isabel Betancourt-Levey believes that participating in the resolution of your own issues can offer much greater control over your own settlement agreement, and oftentimes be more preferable than what a judge will order. Attorney Betancourt-Levey will use her knowledge to guide you through the mediation process, encourage reasonable negotiating skills and ensure that you have the information for sound decision-making at mediation. As a parent she also understands the many ways children benefit when both parents are willing to work together.

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