Mediation v. Litigation: A brief comparison.
The chart below illustrates some of the differences between mediating a family law dispute and submitting a case to a judge for determination. This is, of course, a generalization and is not intended to replace sound legal advice. If you want to explore mediation, you and your spouse or partner should schedule a consultation to determine whether it is right for you. Be advised that once a mediator has met with a couple, the mediator is prohibited from representing either party in a contested divorce due to conflict of interest rules. The converse also applies: if either party has sought individual advice from an attorney on a family law issue, that attorney is precluded from representing the couple in a mediation.
- Face to face meetings between parties
- Cooperative fact gathering
- Attempt to reach an understanding
- Voluntary agreement as to the issues
- Control by parties
- Creative solutions to conflict
- Impartiality of mediator
- Calm, non-threatening atmosphere
- Help in resolving conflicts
- Reaching a compromise
- Fair, balanced meetings
- Problem solving
- Positive and non-threatening atmosphere
- Communicate through attorneys
- Discovery process – often adversarial
- Stating and sticking to positions
- Judge decides the issues
- Control by the courts
- Decisions are governed by legal precedent
- Lawyers are partial to their clients’ positions
- Contentious atmosphere
- Conflicts are often exacerbated
- Polarized positions
- Power plays
- Competing to win
- Formal atmosphere of a courtroom
What a mediator can and can’t do:
Mediators can educate the parties about the process of dissolving a relationship, but mediators are not allowed to give legal advice to either party. From time to time in the mediation process, either or both parties may want to consult an attorney for guidance and evaluation of the options presented.
- Mediators can explore options. They will not suggest which option is best for you. Only you can decide what is best for you – with or without the help of an attorney.
- Mediators cannot reveal what happens in the mediation process. The entire process is confidential and protected by the Rules of Court. Mediators cannot be called as witnesses in court to testify against either party – not even with a subpoena.
- Mediators control the process. The parties control the outcome.
- Mediators maintain balance and foster an atmosphere of good faith in order to resolve disputes.
- Mediators can suggest that the parties employ counselors, accountants, or other neutral experts and professionals to value property, assist in child custody issues, identify assets or explore other issues (such as bankruptcy to resolve debt).
- A mediator cannot FORCE any party to settle. Some cases can’t be settled because a party has too many emotional issues, is not ready to get divorced or not committed to the process of settlement, feels overwhelmed, or is hampered by physical, emotional or mental illness.
- Mediation sessions can take place in a single conference room with both parties and the mediator, or there can be separate “caucus” sessions where the parties speak separately to the mediator about their needs and desires. A mediator can only speak confidentially to one party with the other party’s consent.
Family law mediators must receive training approved by the Supreme Court. An approved and trained family law mediator like Gina Calogero can help a couple identify the issues in their case, understand each other’s position, explore creative solutions and facilitate compromise. Mediation is helpful in any family law situation, whether the parties are married or not.