Resolving disputes using mediation

Many assume that they will need to go to court when they file for divorce. However, there are many forms of alternative dispute resolution that enable couples to resolve their legal issues in a fair and equitable manner without entering the courtroom. One common approach is mediation. This format is often less expensive, less acrimonious and less intrusive than a long drawn out court battle. It is also more private since courts keep public records.

The circumstances behind each legal dispute are unique, even when comparing one custody issue to another or one divorce filing to another. With this in mind, individuals and their attorneys have options for picking a mediation format that is right for them.

Common formats for mediation

The Harvard Law School recently published a list of the seven most common formats for mediation:

1. Facilitative mediation: This conventional format uses a neutral third party mediator who attempts to facilitate agreements by finding common areas of agreement between the two sides and building from there.

2. Transformative mediation: This variation on facilitative mediation empowers the couple to create a new dialogue format for resolving current issues like custody and parenting plans as well as future issues as parents raise their children.

3. Evaluative mediation: Mediators in this format act more like a judge by offering opinions and recommendations as well as explaining how the laws apply to the circumstances of the dispute.

4. Court-mandated mediation: While mediation is typically voluntary, a judge may order the two sides to mediate certain matters, leaving the bench to focus on major sticking points.

5. Mediation-Arbitration: This hybrid starts with agreeing to a format and that the outcome will be binding. It begins with mediation and switches to arbitration to reach that binding agreement.

6. Arbitration-Mediation: This format begins with an arbitrator hearing evidence and writing a sealed decision. The couple then shifts to mediation. If there is an impasse, the sealed decision is then applied.

7. E-mediation: Mediation typically takes place with the two sides in a room together, but sometimes that is not an option (such as when one spouse serves overseas in the military).

Choosing the best format

An attorney can discuss these or other options with the client during initial consultation or later in the process. Regardless of the format chosen, the key to mediation's success is committing to the process and the end results. 

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Keith B. Schulefand, Esq.
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