Mediation is a voluntary family dispute resolution process in which a neutral third party intervenes to assist spouses or partners in the negotiation of a mutually acceptable agreement. A mediator does not have any decision-making authority on the issues in dispute, which remains at all times with the parties. Mediation may be closed, with all communications intended to remain confidential, or it may be open with the mediator to prepare a report on what occurred in mediation. The parties may engage a single mediator to work with them on all issues. Alternatively, they may retain two or more co-mediators from different disciplines to assist them.
The parties may decide to attend mediation alone or they may prefer to have their lawyers present with them. While some mediators are lawyers, when acting in that capacity, they cannot be the legal advisors for the parties. Generally, it is preferable that the parties obtain legal advice prior to participating in mediation. During mediation, a mediator may in his or her discretion provide the parties with general legal information. However, they must seek independent legal advice before they commit to any final and binding agreement negotiated in mediation.
The objective in mediation is for the parties to negotiate a mutually acceptable agreement on all of the issues that may have arisen as a result of their separation. Those issues may include the parenting of their children, child and spousal support, and the division of property. With the assistance of the mediator, they describe their perspectives; they reveal they underlying needs, desires, concerns, and fears; they generate creative options; and they select from among those settlement possibilities that which most completely satisfies their individual and common interests.
While the mediator may inform the parties of the applicable law, they need not restrict themselves to an outcome consistent with what a court might award. At the conclusion of the mediation process, the mediator will prepare a Memorandum of Understanding or Mediation Report outlining the terms and conditions of their settlement from which their lawyers will prepare a Separation Agreement. Alternatively, the mediator may prepare a draft Separation Agreement with the understanding that the parties will obtain independent legal advice and only sign it after their lawyers have made such changes as they deem necessary.