What is Mediation and is it right for my divorce?
What is Mediation?
Mediation is a form of Alternative Dispute Resolution that can be a wonderful tool in helping resolve certain types of cases. The State of New Hampshire Circuit Court defines Mediation as, “an informal process where the parties try to resolve a dispute without the hostility that is sometimes associated with going to court…” This process involves hiring a Mediator; a neutral third party, who is a trained professional, specializing in helping and encouraging parties to come to a mutually satisfactory agreement in terms of settling a matter, which would otherwise require litigation in Court.
What are the benefits of Mediating?
Mediation can save you a significant amount of money and time. The costs associated with preparing for litigation are often times far greater than what it may cost to prepare for and attend Mediation. Attending one or more Mediation sessions can resolve issues in a much more timely fashion, thereby saving fees that would otherwise have to pay attorneys or forfeit in lost time from work.
In divorce proceedings involving children, the Court generally requires the parties to attend mediation before their matter will be heard by the Judge. Additionally, because the Courts are so busy, it can sometimes take months before a hearing can be scheduled. Mediating allows the parties to start working towards a globally satisfactory resolution in a much faster time frame, allowing everyone to move forward.
Another benefit of Mediation is that nothing is decided on behalf of the parties by the Court or any other outside party. This process allows individuals to have more control over the final outcome of their divorce. It is a casual environment and it keeps the divorce process private, whereas Court records can be accessed by the public. This environment tends to be less confrontational which may make parties feel more relaxed, in control and ready to make reasonable concessions in the spirit of good faith and compromise.
Should the parties find themselves unable to reach an agreement, they are always free to litigate the matter before the Court, as Mediation is not legally binding.
What are the risks associated with Mediation?
Mediation only works when both parties are ready and willing to make compromises in order to reach a resolution. If both parties are not at this point, then attending Mediation carries with it the risk of wasting time and money. Fees for Mediation, which are frequently divided equally by the parties, are non-refundable, so even if the attempt to settle is a failure, the fees must still be paid. However, down the road, if the parties do decide they are ready for Mediation, they will be able to exercise the remaining time with the Mediator for which they pre-paid.
A further risk of Mediation is that parties may make detrimental compromises and/or agreements. Although many Mediators are also attorneys, they cannot and do not dispense legal advice to either party, but rather facilitate the parties to come to an agreement on their own. The issue of enforceability and/or bad deals may arise. It is always good to at least consult an attorney before attending Mediation to know your rights. Another way to avoid problems at Mediation is to have your attorney with you. Again, since Mediation is not binding until the agreements are signed by a Judge, litigation is always an option should things not work out as planned.
For more information on Mediation, please click here to see the information sheet issued by The State of New Hampshire Judicial Branch or feel free to call our office in Nashua. We know many wonderful Mediators in and around the greater Nashua area and would be happy to make a referral.
Please feel free to call us at (603) 943-5647 or click here to contact us and we will be happy to set up a consultation to come up with an action plan. Don’t forget to “like” us on Facebook or Twitter to stay up to date with our latest blogs and posts.