Divorce mediation is a process of resolving disputes by engaging a neutral third party who acts as a facilitator, assisting the divorcing spouses in reaching an agreement.
This is a voluntary process, meaning both parties must agree in order for it to occur. Unlike arbitration, the mediator is not empowered to make any decisions. Because mediators are by definition "neutral", they should not give legal advice to either party during the process. Divorce mediation is an alternative, or option meaning the parties can choose instead of litigating their disputes and having the outcome decided by a judge.
There are a number of potential benefits or advantages that can be realized by a divorcing couple who choose to resolve their disputes by engaging in mediation. One of the primary benefits is that the process of addressing all issues in a divorce can occur more quickly in mediation rather than litigation. For example, in the Maricopa County Superior Court of the State of Arizona, processing a contested dissolution action through the court system can take eight months to years, depending on the nature and complexity of the disputed issues. With mediation, the process might take less than 90 days depending on the complexity of the issues and whether professional valuation opinions are needed.
The potential for saving a significant amount of money is also one of the benefits of choosing mediation in a divorce. Not only are the attorney fees typically less, the amount of time that will be spent mediating rather than litigating the issues is usually significantly less.
Additionally, mediation offers a process that is more convenient to the parties. The parties and their counsel have the flexibility of making appointments with the mediator based on their schedules. Mediations typically occur in the mediator's offices rather than in the courthouse.
One of the greatest advantages of resolving issues in mediation is that the parties control the outcome, meaning that any results are the product of an agreement rather than having a judge decide the outcome which often results in there being perceived "winners" and "losers". This is not meant to suggest that agreements are easy to come by or that there are not difficult compromises that each party may have to make in order to reach an agreement. The outcome is still the product of an agreement instead of being imposed on the parties against their will.
Often mediation is beneficial for the parties' children. It allows parents to structure individualized agreements addressing each parent's specific concerns and the particular needs of their children. In mediation, parents are not forced to take harsh public positions against each other and the possibility for co-parenting in a cooperative manner following the divorce is enhanced as result.
Overall, the parties have an opportunity to be creative in structuring their outcome in mediation as compared to what might occur when a judge makes a decision.
While each of these are benefits associated with engaging in mediation to resolve issues in a dissolution proceeding rather than litigating them to a conclusion, mediation is not always a good alternative for everyone. A person's individual circumstances and the nature of the parties relationship with each other needs to be examined before mediation is chosen as an alternative.
There are other important factors that tend to increase the probability of not only a successful mediated resolution but also a fair result. Some of these are addressed in an article I previously wrote, "Successfully Employing Mediation to Settle Issues in Your Divorce".
About the author: Mitchell Reichman is an attorney with the Phoenix law firm of Jaburg Wilk. He is Board Certified as a Specialist in Family Law/Divorce by the State Bar of Arizona and has been selected by his peers for inclusion in the Best Lawyers in America as well as being identified as a "Super Lawyer". Mitch is particularly skilled at representing clients in high conflict divorces with substantial assets He can be reached at 602-248-1000 or firstname.lastname@example.org.