Is Mediation a Legal Process?
Mediation is not a legal process per se; it is a method of resolving conflict that courts have adopted as an alternative to litigation. In fact, any two people experiencing conflict can come together to work out a mutual solution with the assistance of a neutral third party acting as a mediator, regardless of whether or not the conflict might justify a lawsuit.
Courts in many states, including New Jersey, offer mediation as an option for litigants in various types of legal disputes and may even order parties to participate in mediation under certain circumstances. Court rules often specify education and training requirements for mediators who wish to qualify for approved lists. Mediation can occur either before or after someone files a legal complaint. Parties to a court case who settle issues in mediation can ask the court to incorporate their settlement agreement into an enforceable court order. If the participants fail to reach an agreement, they can leave the mediation and return to court. Unlike a judge, a mediator will never impose decisions on the participants and has no power to order binding results.
Divorce Mediation as an Alternative Dispute Resolution Process (ADR)
Mediation is just one form of alternative dispute resolution (ADR) process available in divorce, but it is rapidly becoming the most popular. Another commonly used process is arbitration. Arbitration is more similar to litigation because an arbitrator does have the power to make binding decisions. Private divorce mediation remains much more under the control of the participants than either litigation or arbitration. It is binding only to the extent that the participants reach their own agreements based on mutually acceptable solutions.
Although private divorce mediation is less formal than a court proceeding or even arbitration, it still follows a well-defined structure. Family law mediators receive training to ensure that they know how to follow this structure and that they have the skills necessary to keep participants on track and facilitate successful communication. Every mediation procedure goes through several stages. The mediator starts by explaining the process and setting ground rules; the participants then share information and negotiate solutions to one or more issues; and, if satisfactory solutions are found, the participants then enter into an agreement memorializing those solutions.
For more information about the process of mediation, see our pages: About Mediation
Attorney Representation in Divorce Mediation
Because the goal in divorce mediation is to reach a legally binding agreement that the court can incorporate into an enforceable order, attorney representation during the mediation process is highly advisable. Although a family law mediator is often an attorney, the mediator will not act as an attorney for either spouse during the mediation. For more information on how the role of the mediator differs from the role of the attorneys, see: What is the Difference between Mediators and Lawyers?
While it is important to consult with independent attorneys, the attorneys do not necessarily have to attend the mediation sessions. Whether or not their attendance is necessary or advisable will depend on the complexity of your issues and the preferences of each spouse. Minimal attorney participation generally keeps costs down, but having attorney advice throughout the process reduces the risk of negotiating solutions that later turn out to be inadequate to protect your legal interests.
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