Key Qualities of the Mediation Process
Mediation is voluntary. Both of you must want to mediate and either of you can stop the mediation process at any time. You can leave at any time for any reason, or no reason, and you come to the mediation process by your own decision. As it relates to divorce, more courts are requiring families to attempt mediation before litigation begins, but it is solely up to the parties whether or not a settlement agreement is included.
Mediators are impartial and neutral. The mediator does not take sides and is there equally for both of you. Mediators don’t give advice, although they will help you explore options. They do give information about potential legal issues (but not legal advice) and guidance explaining what customary subjects and issues you should be thinking about.
Mediation is confidential. The information mediation clients share with the mediator is kept confidential by the mediator, with some very limited exceptions (similar to the exceptions that apply to lawyers, therapists, and counselors). Mediation discussions and all materials developed for a mediation are generally not admissible in any court or other contested proceeding, unless you reach a final, signed mediated agreement. If you try to mediate but it doesn’t work, the court will never be told why the mediation wasn’t successful. Mediation sessions take place in private, not in the open courtroom. The details of the dispute are not available on public records.
Clients are in charge in mediation. At the core of good mediation is the idea of self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. The mediator doesn’t make the decisions — the parties do. Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you. Research has found that people who reach decisions through the process of mediation are far more compliant with the agreements when compared to court-imposed decisions.
Mary Sanger is a trained mediator in divorce and family mediation.