Mediation by Definition is the attempt to bring about a peaceful resolution whereby the parties volunteer and use a neutral party to facilitate.
Mediation is chosen by divorcing couples who are either motivated to avoid the pitfalls and the emotional and financial costs of the traditional legal/lawyer driven system or who simply want to arrive at a peaceful settlement.
While many couples are looking to mediation, there is still a lack of understanding of what mediation is and how it can work to bring resolution. Historically, lawyers refer their clients to a “neutral” or “mediator” who would deal with one specific issue that has not been resolved. More recently however couples are choosing mediation as a way to negotiate all issues while using lawyers to address the specific legal issues and draft the contract. This methodology seems to achieve the best of both worlds in that the couple can address the financial and parenting issues in a way that reduces time, cost and stress and yet also ensure that their “rights” have been represented.
The process of Mediation in itself is non-binding. Couples are free to discuss and debate issues, bringing in experts as needed, without the conversation and decisions being binding. This ensures more open, honest dialog. While most couples can still handle some interaction, caucus mediation is used when parties are best kept apart. Caucus mediation is when the parties negotiate separately. Usually at the completion of mediation, the mediator who ensures that all of the decisions are captured, drafts a memorandum of understanding. This memorandum of understanding is not a legal contract but does form the basis of the contract that the lawyers will draft.
In the past, mediation was used for one-off decisions, but today we are seeing a more comprehensive approach, making mediation more comprehensive in nature.
Mediation is the best choice in most cases. Clearly the choice of which mediator is important and the more complex the issues and /or conflict the higher skill set the mediator will require.