Three Things that Mediation Is Not…Plus a Couple More
In a recent article on Mediate.com, Justin Kelsey, a mediator certified by the Massachusetts Council on Family Mediation, tries to dispel some misconceptions about mediation by explaining what mediation does not do. Mr. Kelsey does a good job describing why:
- Mediation is not arbitration — When two individuals are locked in a conflict, there’s a desire to have a neutral third party step in and decide who is right. That’s what arbitration is, but that’s not mediation. A mediator can only guide you to a solution he or she believes should be acceptable to both sides. The mediator does not make a judgment and cannot enforce an agreement. And why should you want that? What if the arbitrator decided against you? Although it may appear harder to work through disagreements to a reasonable compromise, mediation allows you to maintain control over the outcome. As Mr. Kelsey writes, “Even a trained professional is never going to know as much about your life and your goals as you do. Why let them decide?”
- Mediation is not one attorney for two people — Some couples opt for mediation thinking they can split the cost of an attorney and still get personalized advice. Not so. An attorney who is a mediator can advise you about the legal implications of proposed resolutions. He or she can draw on experience practicing divorce law to say how a court is likely to rule on an issue. But an attorney mediator cannot advocate for one party against the interests of the other party, which is what a divorce attorney would do in a traditional negotiation or litigation.
- Mediation is not meditation — This should be obvious. But if you’ve done an internet search for mediation, you’re bound to be directed to meditation. Meditation prior to mediation might be useful for clearing your head, calming you and focusing your attention where it needs to be. And a successful mediation does require some level of self-awareness. But that’s where the similarities end.
To these good thoughts, we’d like to add a couple more. Mediation is also not:
- Time for a marital rehash — Many parties to mediation give in to the temptation to draw the mediator into the marital drama, trying to get closure by convincing the mediator they are the victim and the other spouse is the offender. Unfortunately, this tendency runs contrary to the purpose of mediation, which is to move forward and craft a settlement that secures your future.
- All about the evidence — Mediation is not about proving your point; it’s about reaching agreement. There is generally very little to prove, and the mediator can let you know what that is, so you can provide the necessary documentation. Your focus must be on the terms of your agreement. How should your property be divided? What are the most appropriate, workable terms for your parenting plan? How much support is necessary or fair? A mediated solution to these issues generally arises more from points of agreement than from points in dispute that you must prove through documentation.
On the other hand, for most couples, mediation is a cost-effective, time-saving and less stressful way to resolve your divorce.