Mediation is a cooperative problem-solving process during which a neutral professional guides participants in clearly defining the issues in dispute and reaching agreements that are in the best interests of the family.
The mediator does not make decisions for others but arranges a way for the participants to resolve misunderstandings and communicate more clearly with each other. Parties are encouraged to understand the needs of children, reach agreements in their best interests and develop a cooperative parenting relationship. Mediation aims to fend off hostile and competitive feelings for individuals to better adjust to changing situations and plan for the future.
Because mediation is a joint, cooperative problem-solving process, all parties in the case need to participate. Mediators are aware that participants may not be friendly toward each other but should be willing to cooperate to find solutions that will be fair and meet the needs of all family members.
Commonly, mediation involves only the parties to the case. However, on occasion, the presence of others is needed. This will only occur, however, if all parties concede to include such other persons and the mediator senses inclusion would be beneficial. Children are nearly never involved in mediation and will only be included if the mediator feels it is appropriate in a particular case. It can be comforting for children to see their parents working together to resolve issues, rather than fighting and competing over them.
What is the Role of a Family Mediator?
A mediator is a neutral person who supports the parties to become informed about each other’s needs and interests while collecting information that will be beneficial in developing voluntary agreements designed to meet the goals and serve the interests of everyone involved.
While the goal of mediation is to reach a fair agreement, participants are in control of the mediation process in that they can end the mediation at any time, and there is no pressure from the mediator to reach an agreement. The mediator is a professional who has been trained to enable participants to identify issues, create an orderly program for exploring interests, facilitate problem-solving and keep negotiation on track.
The mediator does not make any judgments regarding the substance of the dispute or any possible resolution. It is crucial to emphasize that the mediator does not give legal advice. The participants should consult their counsel to assess the merits of legal or other issues.
However, the mediator insists that the integrity of the mediation process is never violated and will deter any abuse of the process that comes to the mediator’s attention. The mediator pursues to provide the participants the means to solve problems independently without requiring judges and other authorities to make the decisions. The main goal of the mediation process is to empower parties to solve problems themselves.
Are Agreements Reached in Mediation Legally Binding?
Baltimore County specifies how mediation agreements can become legally binding. Check the local regulations of your state to understand the nuances. The basic rule is that the mediator is not authorized to bind parties to an agreement. Mediation is considered a good-faith negotiation if the parties can resolve their differences.
For instance, if there is a Parenting Agreement, it will be drafted by the mediator and sent to all parties and their attorneys. The attorneys are responsible for converting the Parenting Agreement into a document approved by the court. Once a Judge signs an Order, the agreement is legally binding.
Mediated agreements may be more flexible than court-ordered solutions because they can be modified by mutual agreement as the needs of the families and children change over time. Any alteration to an agreement previously approved by a Judge must be filed with the court for it to be legally binding.
When is Mediation Mandatory in Family Law Cases?
One of the most significant changes to the new family court system is the requirement that parents who cannot agree on shared parenting responsibilities must attempt to mediate their dispute. Mediation is an informal process of working out differences between people using the help of a neutral third party called a mediator, as mentioned earlier. Parents make the decisions; remember that the mediator has no authority to decide any issue.
Some parents are not required to attempt mediation. For instance, mediation may not be mandated in cases with a history of domestic violence, child abuse or neglect, substance abuse, mental illness, or a significant power imbalance. Every state family court office provides pre-mediation screening to determine if these factors might prevent parents from meaningfully participating in mediation.
If mediation is applicable, the family court will assign a person or an agency to conduct the mediation. In terms of payment, parents must pay for mediation at an hourly rate based on their combined annual incomes. Many mediators volunteer their time to mediate cases for indigent parents. There are lists of “approved” mediators on the state family court’s website.
Furthermore, there is also a mandatory divorce mediation requirement. For example, if an answer is filed in response to a divorce complaint (petition), all remaining contested issues are referred to mediation. Parties are expected to participate in at least one mediation session and attempt to resolve the issues in dispute. Parties must participate in mediation before the case can move forward in the court system unless they are excused from the mediation requirement for a good cause. Remember that this requirement does not preclude the entry of pretrial (temporary) orders.
Moreover, parties are responsible for identifying and paying for a mediator to provide this service. Unless otherwise ordered by the court or agreed upon by the parties, the cost of mediation will be divided equally between the parties. However, parties who do not think their case is appropriate for mediation may be excused for good cause by the court, the ADR (Alternative Dispute Resolution) Office, or a Court Qualified Mediator.
If excused by the ADR Office or a Court Qualified Mediator, a notice will be delivered to notify the court and permit the case to move forward. Reasons parties may be excused from mediation will vary from case to case as inferred by the Court, the ADR Office, or a Court Qualified Mediator.
Why is Mediation Required?
Mediation is often appropriate in family-related matters because it encourages collaborative problem-solving by the parties. Mediation allows for the greatest opportunity for direct communication and information sharing.
This can be critical to successfully resolving disputes when children are involved, especially dealing with the implementation of parenting agreements. Mediation offers an environment that identifies and addresses the strong emotional issues linked with divorce and parenting conflicts.
Mediation is built to focus parties on a common interest: the resolution of the disputed issues and the future of their children when they are involved. The informality and flexibility of the mediation process enable issues to be discussed that might otherwise be raised in a more adversarial or narrowly-focused process.
The benefits of mediation include:
- You can directly participate in finding solutions to the issues in dispute;
- Mediation authorizes you to resolve your case more quickly;
- Mediation is far less expensive;
- Mediation promotes relationships, and you will end the process with a better relationship with your former spouse; and
- Mediation is less stressful than court.
When Do I Need to Contact a Lawyer?
If you find yourself in a situation where you are required to participate in mediation, it may be to your benefit to seek out a local family law attorney to understand the basics of the family mediation process.
