Published in the National Conflict Resolution Center Spring 2007 Newsletter
Making Your Own Decisions
In divorce mediation, the mediator meets with both of the parties as a neutral person. The mediator is not the decision-maker - the parties are. The mediator's role is to help the parties understand each other's interests, make proposals and reach agreement. Attorney-mediators may provide legal information, but it is improper for the mediator to tell the parties what their agreement should be.
A mediator only acts as the consent of both parties. A mediator cannot give one person advice against the other. Nothing can be filed at court except by the agreement of both parties. The mediator cannot force either party to move forward against his or her will. The pace of the mediation goes as slowly or as quickly as both parties agree it should.
The parties are encouraged to consult with separate attorneys. An attorney can provide legal advice, suggest proposals to be made in mediation, and review the final Marital Settlement Agreement for recommended revisions and additions.
Many people incorrectly use the terms arbitration and mediation interchangeably. Arbitration is a legal process in which the arbitrator makes binding decisions after the parties and their attorneys argue the case. It is a simplified form of the adversarial court process. While it is an alternative to court, it is not mediation.
Not Marriage Counseling
Many people think that the purpose of divorce mediation is to help couples get back together. On rare occasion, some couples utilizing divorce mediation decide to go into marriage counseling and stay together. But this is not the goal of divorce mediation - the goal is to help people make the decisions for their divorce in the least adversarial manner possible.
Not Representation of Parties
A mediator does not represent either party. The parties represent themselves or they are represented by attorneys. The mediator cannot give the parties legal advice - only "legal information." The parties are encouraged to consult with separate attorneys to obtain legal advice.
In mediation, the parties must be able to obtain the information necessary to make their own decisions. The mediator cannot investigate either party's finances or parenting behavior. If there are doubts, a party should use an attorney for "discovery" and then use mediation for making joint decisions.
It's a Confidential Process
Mediation is confidential by law and agreement. This means that discussions, notes, and proposals made in mediation cannot be disclosed to the court in the event that mediation does not result in a final agreement. You don't give up any rights by meeting in mediation.