Mediation is a form of “alternative dispute resolution”. You are going to hear a lot more about this concept in the future as the costs of litigation continue to rise and the availability of judges and courtrooms are increasingly strained. Basically, the parties in a potential divorce situation, agree to submit the issues of their case to a mediator, who is usually an experienced Family Law attorney. The mediator is granted permission by both parties to freely discuss the issues of law applicable to their case and to attempt to resolve those issues with the participation and cooperation of both parties.

The role of the mediator is significantly different from that of an attorney. An attorney cannot represent both parties, as is sometimes thought. By law an attorney is an advocate of the rights of only one party in a dispute. Often a family law case is resolved by settlement using only one attorney, but that attorney is ethically bound to represent the interests of only one of the parties. In the case of mediation, a mediator represents neither party and both parties have to agree that the mediator is not acting in the role of an attorney.

The mediation conferences between the parties are usually set in the office of the mediator and can take place over several meetings. This can be because documents or other evidence are required for the mediator to fully understand the issues of the case. Once all the facts are determined and parties have been explained the legal concepts applicable to their case, negotiations take place to attempt to resolve all issues.

If the parties are successful in reaching an agreement, the mediator prepares a Marital Settlement Agreement. This agreement is incorporated into the Judgment for Dissolution. Because of the legal effect of signing the Marital Settlement Agreement, the mediator will usually advise the parties to have the agreement reviewed by an attorney of their choice before signing. Once the agreement is signed, it is filed with the Court along with all the other required documents and the judgment is processed resulting in the dissolution of the marriage or legal separation.

Nothing about mediation changes the law as it applies to divorces. There is still a six month waiting period before either party can remarry. The advantage of mediation is the substantial savings in attorney's fees and costs that would otherwise be facing each party. The average cost for mediation is approximately $1,500 to $2,000.00 for both parties.

In my experience there is an additional advantage to mediation over litigation. Mainly the parties seem to be much more satisfied in the outcome of their case. There is greater control over the results and less risk of difficulties after the divorce, that lead to additional court actions to modify custody and support orders.

There are many cases which are not suited for mediation. Obviously, cases that involve spousal abuse, child abuse or serious child custody issues are not going to be mediated. Also the parties should give serious consideration to litigation of cases which have a unique or complex issue of law that substantially effect their rights. Such cases may involve an appeal which would not be possible in a mediated judgment.

An experienced Family Law attorney should be able to advise you whether or not your case is one which would be a good candidate for mediation.