MEDIATION: WHAT IS IT? IS IT FOR YOU?
By Sari M. Friedman, General Counsel
Fathers Rights Association LI and NY
Most people are very curious about mediation. They assume it will be cheaper in the long run than going to a lawyer, i.e. two lawyers, one for each. But that isn't the issue. The most important issue for you is which procedure is best in your particular case, which will bring you the best long term results?
With mediation, two parties attempt to resolve their family dispute by communication and compromise. The mediator then drafts this agreement. Obviously, this is more likely to happen in a "friendly" divorce where both parties are willing to make adjustments
Who are the mediators? What are their qualifications?
There are no legal standards. Anyone can be a mediator. Do not assume the mediator is a lawyer; he or she may or may not be well versed in the law of your state. That's why it is a good idea, if you are using a mediator, to also consult with an attorney throughout the mediation process to make sure you are adhering to the law as it applies in your situation.
Will the mediator be able to give you some legal advice? That would depend upon the mediator. But if he or she is not a lawyer, you should carefully consider the accuracy of any legal advice you may get. The mediator is exactly that, i.e. a mediator between two conflicting parties and does not represent either one. He or she is an impartial listener and observer and must not promote the position of either party
This is another reason for you to consult with legal counsel throughout the process, i.e. to make sure whatever agreement you come to will be considered valid and legal by the courts. The lawyer also brings a long-term perspective to the agreement being formulated. He or she can look at the mediation agreement from your personal point of view, enumerating certain concerns and potential future problems. This legal overview will help you to make an informed decision as to whether you are headed in the right direction. Note: consulting with counsel is not the same as hiring a lawyer.
Who Is Suited for Mediation? Who Is Not?
For mediation to work, two people must be equally committed to reaching a resolution and to compromise. But there are instances where it cannot work.
The most common instance is when one of the spouses does not really want a divorce. He or she can live with things the way they are and will not take steps to sign an agreement until forced to do so by bringing the matter to trial. Too frequently, one party fails to recognize this in the other and commences the mediation process, only to learn six months later that the case has not progressed. The other party only gave lip service to the process and six months later refuses to continue the process, or to sign an agreement.
But what if two people are committed to resolving their problem through mediation? Will mediation then always work? Unfortunately, the answer is no. Sometimes there is simply no compromise point both parties can agree on and it becomes necessary to have the Court issue a ruling. This is especially so if one party is unreasonable in his or her position.
Nevertheless, if parties do go to mediation and resolve the problem and an agreement is drafted, should they each show it to an attorney before signing it? Yes. Definitely. The cost of a lawyer's input and advice before signing a binding contract is minimal compared to the cost of a life long mistake.
There is normally a three step process for an attorney to properly review an agreement, and it will take more than one meeting.
First, the attorney will discuss the background with you and try to understand your desires. Do these desires make sense? Does the lawyer have other concerns about the agreement?
The attorney must know what you think the drafted agreement says or what you want it to say. He or she can then determine if, in fact, the agreement correctly addressed everything.
After reviewing the written agreement, the attorney may recommend changes.
Can An Attorney Serve As Your Mediator?
Can an attorney do what a mediator does and settle a dispute outside of court? Yes. Most cases, in this situation, are settled; very few are tried.
In this situation, each party has a lawyer and the two litigants and their attorneys settle the dispute with each party being advised by his or her attorney on the law and the situation from his/her own perspective and needs.
A mediator is not a substitute for consulting a lawyer and receiving sound advice on the best resolutions to meet your needs. If you choose a mediator, be sure to consult with a lawyer separately throughout the process. And, by all means, do not sign any agreement that has not been reviewed by an attorney representing your interests.