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ALTERNATIVE DISPUTE RESOLUTION - Mediation and Divorce

I am frequently contacted by potential clients who tell me that that want to mediate their divorces rather than "go to court." Sometimes I get inquiries about collaborative law or arbitration. All of these are forms of what is called Alternative Dispute Resolution or ADR. Depending on the nature of your relationship with your spouse, one or another of these ADR methods may be right for you.

The most common form of ADR is mediation, and this article is about mediation. In Michigan family law, there are really two different types of mediation. The most common form of mediation is court-ordered after a divorce case has been filed. This type of mediation gives the divorcing couple a means of negotiating a settlement when efforts to do so without mediation have not succeeded. The mediator is a family law attorney him/herself and is additionally certified by the court to act as a mediator. While the process is informal, typically taking place in conference rooms in the mediator's office, it is nevertheless a critical stage of the divorce proceedings. In fact, most family law attorneys will tell you that the vast majority of cases that have not settled prior to court-ordered mediation will be settled at mediation. It is important to understand, however, that the mediator has no authority to decide your case, but will only act as a facilitator to attempt to get the parties to come to an agreement. Each party is represented by his/her attorney during this process.

Another type of mediation has become quite popular and, in my experience, is very effective. This is a pre-divorce or facilitative mediation, where the husband and wife, without being accompanied by attorneys, contract with a private mediator to negotiate a settlement before the divorce case is even filed. Mediation can take place over a course of weeks or months, and once again, the mediator has no authority to order anything, but provides information, guidance and assists in facilitating a settlement. It is important that the parties have equal bargaining power in this type of mediation. For instance, if one of the spouses is controlling or violent in the relationship, this type of mediation is absolutely out of the question. A properly trained and skilled mediator will screen for these types of problems and will decline to facilitate with a couple where one person is victimized by the other. In facilitative mediation, the mediator will instruct the parties to each retain an attorney for the purpose of providing independent legal advice on the settlement that is reached. Only one attorney is needed, though, to file a complaint, prepare a judgment based on the mediated settlement, and go to court with his/her client to finalize the divorce.

It is important to inquire into the training and experience of your mediator. Not all people who do this type of mediation are attorneys. Some are mental health professionals. You should know your mediator's qualifications before you retain his/her services. Pre-divorce mediation can be a real money saver for the parties. My mediation clients report satisfaction in retaining complete control over the process, rather than leaving it to the courts to decide the important issues in their lives. It is important to educate yourself on these options before deciding whether divorce mediation is right for you.

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