Every human on Earth has been involved in a dispute with another person.  From sandbox battles over who gets to play with the shovel to devastating wars taking a fearsome toll in lives and resources, conflict is part of the human experience.  Conflict can be anxiety-provoking and hurtful, even tragic. It is also frequently a gateway to a change for the better in our lives.

There are lots of ways to resolve disputes.  Loving friends can get together over a cup of coffee and hash out their differences, or they can embroil themselves and their friends in endless combat that finally ends when the participants simply don't have the energy to go on.  Neighbors can negotiate an agreement about exactly where the property line really is between their backyards when one of them wants to put up a fence, or they can sue and countersue in civil courts.  In the United States today, people seem eager to leap straight into litigation without considering alternative methods to settle their differences. Civil litigation can seem to be an attractive option in that it clearly brands one party as "wrong" and the other as "right." The "wrongdoer" is punished through financial penalties and the "victim" is compensated through awards.

The problem with litigation is that there is never a guaranteed winner. A party to a suit turns over the power to resolve his difficulty to a system, and has to trust his lawyer and a judge to come to an equitable and fair decision. This can work; in fact, sometimes it's the only possible way to solve a problem. But if you can avoid it, why give up control of the situation for a winner-takes-all decision that can go against you?

Mediation is a voluntary process, entered into freely by all parties to a dispute.  Mediation ends if one participant decides that he no longer wishes to participate.  The mediator is not a judge or an advisor or an evaluator. The mediator is not an advocate for either party, but a knowledgable third person who will help disputants think creatively, find ways that both parties can get the outcomes that they need, and come to an agreement that is fair and equitable according to their own values. For this reason, it's important that all parties to a mediation buy into the process with full knowledge of what mediation can do for them. Participants in mediation do not have to come to mediation calm and reasonable, but they do have to understand the process if it is to succeed.

The most important feature of mediation is that the agreement that is arrived at is negotiated and created by the parties to the dispute, not the mediator and not attorneys, although there is nothing to stop parties from consulting attorneys for advice.  At the end of mediation, a legally binding contract is signed by all parties, enforceable by court action if necessary. 

This process is slightly different in divorce.  A divorce or separation agreement must be reviewed by the court, so the mediator will prepare a consent agreement expressing the divorcing couple's wishes and decisions. The individuals must take the mediated agreement to attorneys for review. It is very important to choose attorneys who understand mediation and are sympathetic to the aims of divorce mediation. A mediated agreement tends to be balanced, and may include tradeoffs that make sense to the couple, but may look like a poor deal to an attorney who doesn't know how these provisions were arrived at. It's common for an attorney to tell his client that he could have gotten her more than she's getting in the agreement, and this is not in dispute; a successful mediated divorce agreement leaves the marital assets as complete as possible, strives to avoid unnecessary hurt and fear, insures that children maintain healthy and loving bonds with both parents, and leaves both parties with their dignity and humanity intact. It is well-demonstrated time and time again that divorce litigation often does the opposite.

In general, the courts will accept mediated divorce agreements, whatever their provisions, as long as no one is being insanely disadvantaged. It is presumed that both parties are agreeing to these provisions freely and with full knowledge and that they know what they want and need and what is best for them.  The rate of compliance with mediated agreements is higher than that of litigated decisions, probably because the people most affected by the decision are the ones responsible for its creation.

What Does the Mediator Do?

Mediators are professionals in alternative dispute resolution.  They can come from many varied backgrounds.  Some are attorneys, clergy, psychotherapists, teachers, accountants . . . there is no one appropriate background for a mediator!  There are varying requirements among the states in the US for people wanting to conduct a mediation practice.  In some states, there is no regulation at all, in other states mediators need to be certified.  A professional organization, The Academy of Family Mediators, has established different levels of membership, based on education, training and experience. These requirements are uniform over the entire country.

A mediator must be, above all, neutral.  Many clients come to a mediator, especially in divorce cases, expecting a kind of therapist; they will most often be disappointed.  While psychotherapy is aimed at looking back to discover the roots of behaviors and thereby understand them, mediation starts in the present and is aimed at controlling the future.  It is a problem-oriented process, not personality-oriented.  Mediation is not concerned with determining guilt or innocence or punishment and retribution.  Mediation is concerned only with finding a solution to the presenting problem that the participants feel is equitable and workable.  What is key here is that the fairness and equity exist in the minds of the participants. To do this, the mediator controls the process of negotiation and the generation of alternatives.  The mediator sets the ground rules and enforces them.  The mediator helps the disputants find ways around sticking points, and helps them find creative solutions to intractable problems.  The mediator is not an advocate, but the mediator does assure a level playing field, providing a less assertive person protection against steamrolling by a more aggressive partner, but listening to and honoring both partner's views and feelings.

If you're interested in more information, check the links listed in the Table of Contents on the left.