Mediation is not a formal legal proceeding, but courts may require divorcing spouses to make a good faith effort to at least try out mediation before going to court. Mediation is a form of alternative dispute resolution or (ADR), and it is a good solution when divorcing spouses remain civil enough to work out their differences.
Mediation can be very useful in a divorce because it allows separating and divorcing couples a way to communicate to effectively co-parent. Mediation encourages the couple to communicate their needs and desires, without damaging the relationship further; thus reducing conflict and saving money.
In a family law case, a judge may often prescribe mandatory mediation in connection with child custody issues. For example, the parties may formulate a child custody schedule, which will then be presented for court approval. Other situations where mediation may be mandatory can include calculating child support or alimony before or after a divorce, creating a child visitation schedule, and allowing parties to peaceably discuss issues. Some jurisdictions may require mandatory mediation if the dispute involves financial matters falling within a certain range of dollar amounts. Each state will have different laws and statutes when it comes to mandatory mediation.
When domestic violence is a factor, courts handle the issue in different ways. Some states require that judges screen out domestic violence cases so that the abuser and the victim are not forced to talk with one another. Other states rely on the mediators to end the session if they suspect domestic violence between the parties. A few states might not have any rules regarding domestic violence and mandatory mediation, leaving the decision entirely to the judge.
Courts turn to mediation for many legal disputes; however, divorce mediation is one of the most common uses. A divorcing couple may not communicate well enough to achieve a settlement, but they may not want a long legal battle that leaves them impoverished. They also may want to avoid putting their kids through such an ordeal or have their personal information become court record. Mediation means they sit down with a third party who eases communication and the drafting of a settlement that works for both parties.
The goal of mediation is agreement without litigation. Mediation allows two conflicting parties to discuss their differences through the intervention of a neutral third party and attempt to reach an agreement, compromise, or settlement without a court fight.
Mediation happens through a voluntary agreement between the parties, a part of a community program, by court order, or by statutory requirement. Agreement and community program are voluntary, since the parties are not forced into the mediation; court order and statutory are mandatory, since the parties are required by law or court order to attend the mediation meetings.
Unlike a trial, or even binding arbitration, the mediating parties do not walk away with a decision made by a third party. The mediator does not hear evidence, or take sides or issue a judgment that binds the parties; instead, the mediator helps them work out their own issues. Either party can ignore the resolution or back out at any time. Mediation provides a non-litigation based, amicable, and often less expensive way to resolve many issues. By working with a mediator to understand where the problem lies and what each party needs to fix the issue, the goal is an agreement that works for everyone.
Mandatory mediation does not mean that the parties must reach an agreement by the end of the mediation sessions; rather it implies that the parties exercise good faith effort to actively participate in mediation. Parties who can’t reach an understanding by the end of the mediation can turn to the courts. Mediation can be a good course of action in the right circumstances.