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MEDIATION: ADVANTAGES AND DISADVANTAGES

By Webster Watnik

ADVANTAGES OF MEDIATION

If you cannot agree on custody of your children, you can try to resolve your dispute through mediation. Mediation, or assisted negotiation, is one way for parents to settle their dispute. In mediation, the parents meet with a third party, or mediator, who helps them discuss the issues and create their own agreement.

A mediator does not take sides or make a decision for the parents. Instead, the mediator helps the parents find their own solution. If the parents come to an agreement during mediation, the agreement is written up and filed with the court -- making it an official court order. If the parents do not agree, they usually revert to traditional litigation. Of all the forms of ADR (alternative dispute resolution), mediation is used most often in custody disputes.

Save Time and Money Compared to full-blown litigation, mediation can save everyone time and money. Gone are the costs and delays associated with the adversarial system - discovery, hearings, motions, and trial. Instead, the parents meet quietly and privately with the mediator to discuss the situation. This informal approach avoids the interminable delays of waiting for an open courtroom, and relegates the lawyers to the limited - and much less expensive role - of an advisor. Mediation lets the parents reach an agreement sooner and keep more of their money.

Create a Better Agreement Mediation can also lead to better agreements. When a judge imposes a decision, parents are much less likely to obey it than when the parents create the agreement themselves. This higher rate of compliance results in less conflict afterwards. Also, when parents create the agreement, they can customize it to fit their situation. In reality, most judges will never get all the details right. And finally, when parents make their own agreement, they may be able to find a "win-win" situation where each gets what is felt to be most important.

Learn Problem-Solving Skills By resolving the dispute through mediation, the parents also learn valuable problem-solving skills. When custody is in dispute, the parents do not just resolve the disagreement and move on. In fact, they'll have to interact with each other for many years afterwards. This makes it crucial that the parents learn how to settle future disagreements. Mediation teaches a new model for communication that helps avoid future disputes.

DISADVANTAGES OF MEDIATION

Unfortunately, mediation isn't for anyone, and it has several disadvantages. Here's the downside:

The Other Parent May Not Cooperate In mediation, you cannot force the other side to participate. If one parent refuses to participate, or if one parent does show up but takes a completely unreasonable position; it won't work. Mediators do not have the power to compel someone to cooperate, and they cannot impose a decision. If the mediation sessions don't result in an agreement, nothing tangible is accomplished.

The Other Parent May Dominate One of the reasons why parents hire a lawyer is to equalize their relative bargaining positions. If one parent is exceptionally domineering or manipulative, the lawyers can help to offset the imbalance. But when the lawyers are removed - as in mediation - the parents are right back to their former roles. This lets someone who lies or hides information effectively sabotage the negotiations, or bring about a result that would not have occurred otherwise. The lack of extensive pretrial discovery is one reason why mediation costs less, but discovery is also an important check-and-balance in the adversarial system.

The Other Parent May Scare You In mediation, a parent who has been victimized by prior acts of abuse or violence will lose some protection. Because mediation usually brings the parents together in the same room, a parent who is afraid for his or her own safety may be intimidated and unable to fully participate in the process. Because of this, some states allow the parents to be excused from court-required mediation, while others allow each parent to meet with the mediator privately.

WHAT HAPPENS WHEN YOU MEDIATE

You typically get involved in mediation when the court orders you to go, or when you and the other parent agree to give it a try. Either way, the process is usually the same.

Preliminary Meeting Before jumping into the dispute, the mediator often needs a preliminary meeting to get everyone organized. In this meeting, the mediator will get the basic information, find out the problems, and dictate the ground rules for the sessions. A good mediator will take control of the process, and not let the discussion disintegrate into endless squabbling and name-calling.

Joint Sessions After the preliminary meeting, the parents usually return to the mediator's office for a series of joint sessions. Depending on the mediator, these sessions may last as little as 30 minutes, or as long as two hours. And they may conclude within a few weeks, or stretch out over several months. In these sessions, the parents discuss the problems. Usually, each parent is allowed to talk without interruption and given a chance to express concerns. Everything is on the table during the meetings, including school involvement, discipline techniques, medical needs, and more. By letting the parents talk, the mediator seeks to help them understand each other and to reach a satisfactory agreement.

Separate Sessions The parents may also have separate sessions with the mediator. These sessions allow each parent to talk privately, and to "sound out" a possible settlement offer without revealing the plan to the other parent. If necessary,, the mediator can shuttle back and forth with the offers until an agreement is reached.

Agreement If the parents can pull together an agreement, the mediator will write it down in some kind of memorandum. This document is typically submitted to the judge, who generally approves it and enters it into the court record - making it an official court order. Because this document is so important, many parents ask an attorney to review it prior to signing it.

Court Recommendation If the parents cannot reach an agreement, they have reached an impasse and the process has failed. If the mediation is private, the parents can pursue other approaches - such as litigation. But if the mediation is court-ordered, several things may happen. In some states, the mediation is confidential, and the parents then proceed with litigation. On other states, the mediator is asked by the judge to make a recommendation, and this recommendation will influence the judge's final decision. In still other states, the mediator can be called to the witness stand and asked to testify about the case. If you are in a court where the mediation is not truly confidential, you are in a muscle mediation, where the mediator can coerce an agreement if the parents can't agree on their own.

HOW TO DECIDE IF MEDIATION IS RIGHT FOR YOU

1. You are both willing to participate. 2. You are both willing to compromise. 3. You are both able to clearly communicate your goals. 4. Neither of you can dominate the other. 5. Neither of you is too emotional to participate.

Posted on Saturday, February 24, 2007 at 01:12PM by Registered CommenterSite Administrator in | Comments Off

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