In mediation, two disputing parties have a neutral third party present to facilitate negotiation discussions and, ideally, an agreement between the parties. The mediator is trained to assist the parties through the negotiation process. The goal of a mediator is to help the parties reach an agreement that is acceptable to both of them, to make sure each party is heard and one does not control the negotiations and to ensure the agreement reached by the parties is legally sound. If the parties do not reach an agreement through mediation, the mediator does not have the power to impose a decision on the parties. Unlike arbitration, the mediator does not have the authority to bind the parties to an agreement. However, once the parties create a settlement, the court may approve the agreement, thus making it binding.
A family law mediator has specific training for dealing with often emotional and complex family issues. The role of the trained neutral is to create an environment where each party (husband and wife) is able to voice their needs, requirements, and thoughts throughout the negotiation process. Ideally, the parties should be able to express themselves in an atmosphere that is not aggressive or intimidating.
During the negotiation process, divorcing persons may determine the number of issues, including the division of property or finances, alimony, child custody and a visitation or parenting time schedule. When the parties reach a settlement agreement that is acceptable to both of them and legally sound, the agreement is approved by the court.
Generally, individuals do not have an attorney present during mediation. Attorneys may advise their clients on the mediation process, what to expect and what rights to be aware of, but are usually not in attendance at the mediation. However, if the parties would like their attorneys to be present in the mediation, they can be. If the divorcing persons do not choose to have their attorneys present in the mediation, some inequalities may occur that they should be aware of and try to prevent.
If such negotiation inequalities become apparent, it is the mediator's role to try to balance the power between the husband and wife in the negotiation. A drawback with mediation may be that the mediator does not have the same authority over the negotiation process as a judge would have in litigation. Both parties should give full disclosure of his or her assets; however, if they do not, a mediator cannot compel them to do so.
The use of mediation in family law matters has increased in recent years. As a result, some jurisdictions are now requiring mediation as a first step in family law disputes. In states where mediation is required, disputing parties may select a certified mediator, or if they do not, the court will appoint one for them. If an agreement is not reached during mediation, the parties will have to seek litigation.
Conversely, divorcing individuals may choose to seek a private mediation on their own. The parties may hire a certified third-party neutral from an independent mediation firm to help them reach a settlement agreement. The court has no role in this process. However, the court must approve the agreement once it has been made.
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