What are the benefits of mediation?

By Paula J. Swensen
March 31, 2016
benefits of mediation

As a desirable alternative to litigation, mediation is a form of dispute resolution whereby a neutral third party, a “mediator,” assists the parties in resolving some or all of the issues in their dispute. In the case of a divorce, or other family law matter, this process may include resolving issues of child custody, child/spousal support, prenuptial/marital agreements, property division, and any other issues that may arise in connection with a divorce or other family law proceeding. The mediator does not tell the parties what to do, but rather assists the parties in fashioning a resolution that is satisfactory to both of them. The parties in mediation may or may not be represented by counsel.

There are many benefits of family law mediation. First, it is an appreciably more cost-effective way to process and conclude a divorce. In litigation, costs often escalate in direct proportion to the level of contentiousness between the parties. While parties in mediation are seeking to further their interests and achieve certain goals, they are doing so in a more cooperative fashion than their litigation counterparts. This cooperative approach keeps costs down. Cooperation does not mean “giving in.” Rather, both parties seek to achieve his or her respective goals collaboratively rather than combatively, and this has the added benefit of reducing the emotional impact during the process.

Mediation is also designed to afford the parties with the optimum level of input and control in fashioning a desirable outcome. Settlements can be creative and may provide for terms that would not otherwise be achievable from a judge. Contrast that with taking the matter to court and having a complete stranger decide the fate of the parties and their children, and doing so in an environment that is often hampered by delays and severe time constraints. It has also been shown that when parties work together to formulate an agreement on their own, it is more likely that the implementation of their agreement will be more successful than if it had been imposed upon them by a court.

One of the hallmarks of mediation is its confidential nature. In order to provide a forum conducive to the resolution of private disputes, candor of the parties is essential. Toward that end, there are strict rules in California regarding the sanctity of the discussions in mediation. This is designed to encourage openness and honesty in an individual’s efforts toward resolution, and that openness might be lessened if a person’s words could be used against them in court. Thus, the substance of those discussions cannot be revealed during a litigated proceeding at court.

Mediation often results in a faster resolution of the disputed issues. As we have seen more and more recently, due to state budget cuts and other constraints, the time available for a judicial officer to hear a party’s matter is quite restricted. It is often the case that the matter is settled during the time that the parties are waiting to get to a hearing.

In summary, family law mediation is often a faster, less costly, and more satisfying alternative to litigation. In selecting a mediator, it is wise to choose a mediator who is also a Certified Family Law Specialist to ensure that all of the required documents are prepared timely, correctly, and completely.

Paula J. Swensen is a Certified Family Law Specialist at Phillips Whisnant Gazin Gorczyca & Curtin, LLP, a family law firm in Newport Beach, California. View the firm’s Divorce Magazine profile.

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March 31, 2016
Categories:  Legal Issues|FAQs

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