Maven Learns About Mediation: How Mediation is Used to Settle Disputes

Maven and Marcus were happily married for two years, although they had been married for ten.  It all came to an end eight months ago when Marcus discovered that Maven had an OnlyFans account and was participating in activities that he just could not accept. The parties separated, Marcus filed for divorce and the divorce was recently finalized.  They are now engaged in dividing their property.  During a meeting, Maven’s attorney asked her what her thoughts were about mediation.

Maven: “I don’t even know what mediation is.”

Attorney: “Mediation is a voluntary, confidential, and flexible way to resolve disputes where a neutral thirty party called a mediator assists parties who disagree by helping them communicate, understand each other and negotiate a mutually acceptable settlement. It’s basically an alternative dispute resolution process that can help you reach an acceptable conclusion to your case.”

Maven: “Do attorneys participate in mediation?”

Attorneys: “I will participate in mediation with you but a party does not have to have an attorney to participate in mediation. Mediation can work just as well for parties who do not have attorneys as it does for those who do.”

Maven: “How is mediation different from Court?”

Attorney: “It’s different from Court because it’s voluntary, meaning that the parties have to agree to do it and they can stop the process at any time.  Also, the mediator does not decide the outcome.  They help you reach an agreement but they cannot force you to agree to any terms that you do not want to agree to.  You can either continue to negotiate or end the mediation.  You have the power to decide.  Whereas, if you go to Court, once you start the trial, you cannot unilaterally stop it.  Once the evidence is presented to the Court, the power to decide would be in the Judge’s hands. In the end, the Judge would make the decision for you and they would enter it as a Court order.”

Maven: “Will the mediator report to the Court what happens during mediation?”

Attorney: “No, mediation is confidential and generally cannot be used in Court. Typically, the only thing that would be submitted to the Court would be any agreement signed by the parties. If no agreement was reached, neither the mediator nor their notes could be subpoenaed by either party.”

Maven: “So how does it work?”

Attorney: “The parties and their attorneys choose a mediator and schedule time for the mediation.  The parties would either split the fee or agree as to how it will be paid.  The mediation will occur at a neutral place and is private, so no one else can participate.  It could start with both parties and the mediator in one room to address some common concerns.  They could take care of some issues at that time like last-minute administrative matters, setting ground rules, and helping the parties identify issues that need to be addressed.  Afterwards, the parties would be separated.  In the separate sessions the mediator would meet with the parties to communicate offers in private. The mediator would go back and forth between the parties helping them negotiate terms that they can agree upon.  If an agreement is reached, then a written agreement would be prepared and shared with the parties for their review and signature. Once it is signed by the parties, it would be filed with the Court.  Then the Judge would review it and once approved, would sign it so that it would become a Court order.  This Court Order would be legally binding, meaning that it must be followed by both parties.” 

Maven: “We haven’t been able to come to an agreement so far so why would we think a mediator could help?”

Attorney: “A mediator is a neutral party who is not tied to the history between the parties or the outcome of the case.  We would choose a mediator who has experience with similar cases because they would understand the process and its complications.  As a result, they would be better suited to understand the parties’ points of view and effectively relay it to the other party.  This would be helpful in managing emotions and focusing on the issues to be resolved.  A majority of cases are settled through mediation, even when the parties have tried to resolve it themselves.”

Maven: "Why would I choose to do that instead of just going to Court?”

Attorney: “In addition to you getting to decide the terms of your agreement, it is generally cheaper and faster. With the help of mediation, you could resolve your case within weeks as opposed to months and you could save thousands of dollars in attorney’s fees for preparing for and participating in trial. Mediation is also less stressful and less adversarial for you than having to prepare for and testify in trial.”

Maven: "Ok, this sounds good. Let’s go for it?”

Attorney: “Ok, I’ll reach out to Marcus’ attorney and see if they’re willing to do it too.”