Mediation is a non-binding, voluntary process where both parties must be interested in achieving resolution. It can be a helpful tool in conflict resolution, both in the workplace and for spouses looking to divorce or separate. However, mediation is not the proper forum for everyone.

Mediation is successful if the parties want to be a part of the process and are serious about resolving their differences. In mediation, the parties meet with a mediator. The mediator is there to facilitate resolution. The mediator cannot force resolution, but will help the parties come up with alternatives and options with a goal of reaching agreement.

Divorce mediation is the preferred choice for couples facing separation and/or divorce because it is a more amicable, faster and cheaper process than litigation. It offers couples more control over the process and the decision-making, allowing for more flexibility and cooperation in determining, among others: Equitable Distribution of Assets and Property, Custody, Child Support, and Maintenance. Divorce mediation allows couples to structure their divorce differently than if they went to court. The parties are made aware of the guidelines for child support and spousal maintenance, but have the option to opt out of these guidelines and decide together the amount of these payments. The parties can work together to determine a parenting plan and custody arrangements that best suits their child(ren) and their life. Aside from the flexibility in structuring the divorce and distribution of assets and liabilities, the cost of divorce is a fraction of the cost as compared to a contested litigation.

Mediation can also be a helpful tool in workplace disputes. Prior to commencing litigation, the parties should consider mediation, as it is generally faster and the parties, as stated above, have more control over the process. Some employers have policies requiring mediation prior to litigation or arbitration. A good mediator, is aware of the law and attempts to settle the underlying issues that have arisen. The parties will make the mediator aware of the circumstances, the efforts, if any, that have been made to resolve the situation and the proposed resolution. The mediator will work to try and facilitate resolution and at the same time provide his/her insight into the strengths and weaknesses of the claims.

Mediation is generally not successful if the parties are not both on board. If the parties are not truly interested in resolving the situation, the mediation will most likely fail. If mediation is being used as a tool to humiliate, intimidate or deplete a parties’ assets, the mediation should not move forward or should be halted quickly. In situations where there are orders of protection or claims of domestic violence, mediation is not the proper forum for divorce. Parties should not move forward with mediation if one party is overbearing or controlling.

In all situations, should resolution be reached the agreed upon terms should be subscribed to writing and provided to the parties for both to have reviewed by an attorney and signed. A copy of the agreement should be kept by both parties so that they are both aware of their obligations.

In a truly success mediation, the parties are slightly unhappy but happy that the matter has been resolved. Why? Because mediation is a compromise by the parties. One party agrees to give in to one item in order to obtain another, or one party paid more money than they wanted to the other party but the other party is disappointed because he/she wanted more than what was to be received. Overall, the parties are satisfied with the outcome because the issues have been addressed and settled. Both parties have had the opportunity to speak, be heard, and stand up for what he/she believes and wants.