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Mediation – Neutral Facilitation For Family Law Matters

Our last post was second in a series about alternative dispute resolution (ADR) – an umbrella term for out-of-court methods for ending legal disputes. Last week, we discussed the basic principles of negotiation. This week, we move onto the next logical step that separating or divorcing parties can turn to without resorting to litigation.

What Is Mediation?

Mediation is a forum in which both parties meet with a facilitator in an effort to identify, discuss and resolve legal matters. In the family law context, this often involves ironing out issues that arise from separation and divorce. This can include property division, child custody and access and child and spousal support. However, mediation is also sometimes used for negotiating such matters as:

  • Family law agreements before entering a committed relationship
  • Family business arrangements
  • Intergenerational disputes and matters related to elderly parents

Whats The Role Of The Mediator?

A mediator is a third-party, neutral facilitator. He or she may be a lawyer, but psychologists, social workers and other professionals may also serve as mediators. The mediator does not provide legal advice or exercise decision-making power. Instead, these trained and accredited practitioners smooth the way for better communication and help the parties explore and create their own customized solutions.

How Does Mediation Work?

Mediation is voluntary. It can take place before and even during a court case. Both parties must agree on the selected mediator. Either party may withdraw from the process at any time. There may be one or more sessions, depending on the number and complexity of issues and the degree of cooperation between the parties.

Ideally, both sides retain their own independent legal counsel, but lawyers often work in the background providing advice and reviewing any resulting agreements, but not necessarily attending the mediated session.

Mediation is not appropriate where one side has an imbalance of power, such as in cases of family violence or abuse. It works best when parties are motivated to work together, listen, communicate and compromise. Couples who use this ADR method may be able to create fair, workable arrangements, while avoiding an adversarial atmosphere and possibly paving the way for more harmonious post-separation relationships where children are involved.

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