THE MEDIATION PROCESS
Family and divorce mediation is a process in which a mediator, who is an impartial third party, helps solve family disputes. The mediator assists communication, encourages understanding and works with the participants to explore options, make decisions and reach their own agreement.
Family Law cases are well suited for mediation because the issues are particularly personal and emotional. The fact that mediation gives people the opportunity to be heard and to listen to the perspective of the other party means that couples are often able to work out their differences in productive and collaborative ways that minimize disruption to their lives and, where there are children, to their children’s lives.
Six Stages of the Mediation Process
Introductory Remarks/Opening Statement
Statement of the Problem by the Parties
Information Gathering Stage
Identification of the Problem
Bargaining and Generating Options
Reaching an Agreement
1) Introductory Remarks/Opening Statement: The mediator outlines the roles of the participants and demonstrates the mediator’s neutrality. The mediator will also review the mediation process and briefly recap the issues and the areas to be addressed. The opening statement during the introductory remarks will set out the ground rules (e.g., parties should not interrupt each other) to help the mediation move along smoothly. If attorneys are present, they can confer with their clients but the parties should speak for themselves.
2) Statement of the Problem by the Parties: After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. The statement is not necessarily a recital of facts, but it is designed to give the parties an opportunity to frame issues in their own mind and to give the mediator more information on the emotional state of each party.
3) Information Gathering Stage: The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties and will summarize to may sure all parties possess the same understanding of what is being said. This helps the mediator to build rapport between the parties and make sure everyone is on the same page.
4) Identification of the Problem: The mediator tries to find common goals between the parties and helps to focus the parties on identifying the real issues and ways to address the same.
5) Bargaining and Generating Options: Once the parties have adequately identified the issues that need to be addressed in mediation, the mediator will propose a brainstorming session to explore potential solutions. The mediator may decide to hold private sessions with each party in order to move the negotiations along. These “caucus sessions” will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options and to bring about possible solutions for the parties to think about.
6) Reaching an Agreement: The goal of mediation is for the parties to negotiate and reach an agreement which addresses the issues they have identified. The agreement, referred to as a “Memorandum of Agreement”, is reduced to writing by the mediator. The parties are encouraged to have the agreement reviewed by independent legal counsel before they sign. After the review, the parties will return to mediation to discuss the provisions, potential revisions, and to finalize the agreement. Once signed, the agreement is a legally binding contract that protects the parties during the period of a separation and that will be incorporated in any decree entered by the court should either party seek dissolution of a marriage/relationship.