The Benefits of Mediation in Family Law Disputes
I am frequently asked by my family law clients if it is possible to resolve their family law disputes in a less adversarial and less formal way than the traditional litigation process. Fortunately there are several different out of court dispute resolution options available. For most clients, resolving a family law dispute through a trial should be considered only as a very last resort. This article will discuss one dispute resolution option: mediation.
Mediation is a dispute resolution process by which spouses attempt, with the assistance of an impartial, trained neutral third party to negotiate and formulate their own consensual resolution of matters at issue between them relating to their marriage, cohabitation, separation or divorce. While the mediator manages the process, the mediator retains no independent decision making power respecting the substantive outcome of the negotiation. If there is a settlement, it is one that both parties have reached by consensus, and not a result which has been imposed by the mediator. Unlike a trial judge, a mediator’s role is to guide and facilitate discussion, to assist the parties in creating their own solution to the problem. Mediators who are also experienced family law lawyers, may, at times make evaluative comments on the possible legal outcomes or solutions to encourage the parties to reach a resolution.
The model of mediation most often used in family law cases is “Interest Based Mediation”. Interest Based Mediation focusses on separating the people from the problem. The mediator helps the parties to see that the issue in dispute is a joint problem for which both parties need to work together to find an acceptable solution. Mediators redirect the parties so that they can focus on the parties’ interests, not their legal positions. Sometimes, spouses engaged in a family law dispute find themselves entrenched in their “bottom line” positon. This can make it difficult for the parties to recognize that there may be an alternative resolution which is satisfactory to both parties. At times communication between former spouses has become very difficult, tense or even hostile. By reframing the communication between the parties, the mediator identifies each party’s needs, desires, concerns, fears and hopes. Once this is done the mediator helps them to recognize where there may be common interests. Once the parties can see the common interests, the mediator helps them to consider solutions that both parties can accept.
Some of the benefits of resolving family law cases by mediation are:
- Mediation is less formal and is less stressful to the parties than the traditional court process;
- Mediation is usually less expensive than litigation and can usually be concluded more quickly than traditional litigation.
- Mediation allows the parties to have more control over the process. All issues can be addressed at mediation; the parties define the issues and set the agenda.
- Mediation is better for the children. Research shows that high conflict between separating parents hurts many children more than the separation itself. Parents often share the goal of reducing conflict so that they can focus on the needs of their children. Early mediation is a proven way of reducing stress and conflict for the benefit of the children, especially during the critical first year after separation.