Family Mediation

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What is Family Mediation?

Family mediation is a process in which a neutral third party is appointed to resolve an issue or conflict between two parties in a family law dispute. The third party acts as a “mediator” between the parties by facilitating communication in a non-confrontational atmosphere. The goal of mediation is to resolve the dispute in a manner that promotes reconciliation and settlement. This may often involve compromises between the two parties.

Mediation is different from arbitration, which is another method of alternative dispute resolution. Mediation is often voluntary, and the parties are sometimes free to choose the mediator. It does not create any legally binding decisions for either party and is generally an informal process. On the other hand, arbitration is sometimes mandatory and creates a legally binding decision. It resembles a court hearing and often involves witnesses and presentation of evidence.

Family mediation can be a good choice for resolving disputes because it is less costly and less time consuming than a full-blown trial. In many cases it can preserve the integrity of a family by avoiding the conflicts associated with litigation. 

What does the mediation process involve?

Mediation first begins when the parties agree to submit to mediation sessions. This is the most important and sometimes most difficult part of the process. If both parties are unwilling to work with a mediator, the process cannot be forced upon them.

The next phase involves selecting a mediator. Sometimes a judge may appoint the neutral third party, but oftentimes the parties are free to choose their own mediator. Preferably, they should be a family lawyer or a professional who is knowledgeable of family law issues, such as a counselor. The mediator must not be materially interested in the outcome of the mediation.  

Depending on the nature of the family law conflict, the actual mediation sessions can last anywhere from a day to several weeks. During the meetings the parties will voice their concerns and attempt to reach a resolution. After the sessions are completed, the parties should have arrived at some sort of agreement. Though the final agreement may not be legally binding, the parties can formalize the agreement in a written document such as a contract. 

When is Family Mediation recommended?

The most important principle of mediation is participation. Mediation is only recommended for persons who are willing to open up and participate in the group discussion. It is not recommended for persons who are still recovering from trauma or emotional damage from a dispute.

Also, mediation is typically not available for persons who do not have the legal capacity to make decisions. This includes minors and persons with mental or psychological conditions.

Mediation can be used in addressing a wide variety of family law issues, including: divorce, legal separation, child custody, child/spousal support arrangements, disputes over family estates or family businesses, and will contests. 

How do I prepare for a family mediation session?

In some instances a judge will ask the parties to prepare a statement or summary of the dispute and the desired outcome. If this is the case, the parties should prepare their summaries and present them during mediation. 

However, even if a judge has not ordered such preparation, the parties should still compile their own summaries to be used in the meetings. This may include gathering relevant documents such as receipts, police reports, and detailed accounts of the incidents involved.   

The procedural details of the mediation meetings can be agreed upon before the sessions begin. These can be written into a “mediation agreement” or “mediation contract” to be signed before the meetings begin. 

Should I hire a lawyer to assist in family mediation?

Family mediation does not require a lawyer to be present at the meetings. However, it is highly recommended that the parties involved in the mediation obtain legal representation beforehand. If one party brings a lawyer to the meeting but the other does not, this is generally considered to be unfair. Thus, the parties are strongly encouraged to obtain a family law attorney beforehand. The parties also should not sign any agreements without a lawyer present.

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Last Modified: 03-05-2012 04:02 PM PST

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