What is mediation?

What is mediation?
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There are a number of different ways for a couple to make all the decisions needed at the end of a marriage. Mediation is one of these ways.

In essence, divorce mediation is where the two spouses work with a trained neutral professional in an informal, voluntary, and confidential process to reach an agreement they consider fair.

Now, practically every word of this definition is important. Both spouses must be involved. Mediation requires hard work, emotionally and intellectually, of everyone.

The mediator is not an advisor, counselor, therapist, or decision-maker. He or she is more like a guide. The mediator must remain neutral, which is different from "without bias." The mediator’s bias is always toward helping the parties reach an agreement. But the mediator has training and experience in the divorce dynamics, in the substantive areas where decisions are needed, and in the mediation process itself.

The mediation process is informal—it can be in a setting akin to a living room. Often drinks and snacks are available. There are very few formal rules. It does require both parties' willingness to participate—and to say when an option will not work and why.

Nothing said in mediation can be repeated in court, and the mediator cannot be called as a witness—except in very limited circumstances, such as when an agreement is reached. The mediator does reserve the right to weigh in on whether a final agreement appears fair, but this usually is a decision reserved for the parties, unless the mediator observes some undue or coercive pressure.

Mediation involves active listening, emotional sensitivity, and patience. It uses information gathering exercises and homework, identification of goals and priorities, development of options, and elimination of unworkable options through cooperative discussion. And it depends heavily on the involvement of supportive lawyers, generally as outside consultants, but sometimes as active participants in the sessions. At the end of the process, lawyers typically act as scribes to draft and review the written legal agreement.

All in all, mediation can be one of the best, most effective, and most efficient ways for couples to reach an agreement on the decisions they need to make in order to separate and divorce.