What to Expect in a Divorce and Custody Mediation: Key Elements

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Mediation is a Neutral Process

The mediator is a "neutral." She has no interest in the outcome of the case. She is not a judge or arbitrator and has no authority to render a decision on any of the issues. She is a facilitator, reframing, reality testing, using her neutral tools to unearth interests, find common ground, and help the parties reach a mutually agreeable resolution to their issues. In divorce and custody cases, the issues vary depending on the parties' unique circumstances, but generally they concern with whom the children will reside (physical custody), who will make decisions concerning their religious and educational upbringing, medical care and treatment, and extracurricular activities (legal custody), how the assets and debts of the parties will be divided (equitable division of property), and what kind of support, if any, is to be paid out of one party's estate for the support of another.


Mediation is a Voluntary Process

The parties may be ordered to mediation, but they are only required to attend and mediate in good faith - not to reach an agreement. Either party can terminate the mediation at any time, as can the mediator. The mediator's goal, however, is to assist the parties in arriving at a mutually acceptable and lasting agreement. If an agreement is reached, it will be drafted by the mediator, signed by the parties and their attorneys (who may retype it in formal form) and ultimately presented to the Court for approval and incorporation into a Final Judgment and Decree of Divorce.


Mediation is a Confidential Process

When parties to divorce are presented with opportunities to make decisions in the absence of acrimony or judgment, their agreements are generally more sound and sustainable than judgments rendered by a judge with limited knowledge of their families. But parties have to feel confident that the mediator is, in fact, impartial and will not repeat what was said in mediation to the judge hearing the case. Accordingly, an Agreement to Mediate is signed which provides that the parties agree not to subpoena the mediator, who in turn promises that she will not willingly testify for or against either party. Confidentiality is waived when parties threaten to hurt themselves or other participants and when allegations of child or elder abuse are made.


Mediation is a Self-Determined Process

Self-determination is the principle in which mediation found its genesis, the underpinning of its credibility and viability. For mediation to be effective, participants need to feel safe and uninhibited, empowered to identify and articulate individual needs and interests. A skilled mediator hears a cautionary bell when imposing figures with superior status, education, intellectual capacity and/or financial resources create an imbalance in bargaining power - and when passive, unsophisticated, and/or uninformed parties are being bullied into agreements through intimidation and/or misrepresentation. When that happens, the mediator's job is to regain control of the process, to recreate an environment in which both parties are empowered to articulate their interests, and to promote self-determination.

Additional Resources

Bahr, S. J. (1981). An evaluation of court mediation. Journal of Family Issues, 2(1), 39-60. Bailey, Jo Daugherty (2007). Mediators’ accounts of empowerment and disempowerment in divorce mediation. Journal of Humanities & Social Sciences, Volume 1, Issue 2. Bryan, P. E. (1994). Reclaiming professionalism: The lawyer’s role in divorce mediation. Family Law Quarterly, 28(2), 177-222. Bush, R. A. B., & Folger, J. P. (1994). The promise of mediation: Responding to conflict through empowerment and recognition. San Francisco: Jossey-Bass. Cobb, S. (1993). Empowerment and mediation: A narrative perspective. Negotiation Journal, 9, 245-259. Cohen, Judy (2003). Convening for Enhanced Self-Determination and Access to the Process. The Texas Mediator, Volume 18, Number 2, Summer 2003. Emery, R. E., & Wyer, M. M. (1987). Child custody mediation and litigation: An experimental evaluation of the experience of parents. Journal of Consulting and Psychology, 55(2), 179-186. Grillo, T. (1991). The mediation alternative: Process dangers for women. Yale Law Journal, 100, 1545-1610. Hedeen, Tim (2005). Ensuring self-determination through mediation readiness: ethical considerations. Retrieved from: www.mediate.com/adamediation. Hoffman, David. “A Primer on Successful Negotiation” (2003); Bush, R. Baruch & Folger, J. The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994). Pearson, J., & Thoennes, N. (1984). A preliminary portrait of client reactions to three court mediation programs. Mediation Quarterly, 3, 21-40. Quek, Dorcas (2010). Mandatory mediation: an oxymoron? examining the feasibility of implementing a court-mandated mediation program. Cardozo Journal of Conflict Resolution, Volume II, Number 2. Shailor, J. G. (1994). Empowerment in dispute mediation. Westport, CT: Praeger. Welsh, N. A. (2004). Slipping back through the looking glass: Real conversations with real disputants about institutionalized mediation and its value. 19, Ohio State Journal on Dispute Resolution, 573.

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