BY: VALERIE DYE
Collaborative family law is a means of resolving disputes whereby lawyers work together with their clients to arrive at solutions without needing to seek recourse in courts. Apart from this method of settling disputes parties have access to other methods of dispute settlement. One of the major ones used in family law is mediation.
Mediation is the process whereby parties, often without the presence of lawyers, discuss their case before an impartial third-party who tries to settle the issues by listening to both sides before trying to work out a compromise. It is important that the mediator be impartial. As opposed to litigation where the respondent must take part in court proceedings filed against him or her, mediation is completely voluntary. Unless both parties are willing to take part then the process cannot take place.
Another point to note is that the mediation process is not binding upon the parties as the mediator cannot make decisions in the way that the court hands down a final decision. The goal of mediation is, however, to get parties to reach an agreement and if both parties sign off on the agreement then that agreement may be binding as long as both parties have willingly and freely executed it. The most common agreement arising from the mediation process in family law is the separation agreement. This agreement is, of course, is binding upon both parties. One or both parties can refuse to sign a mediation agreement.
Although mediation generally takes place before mediators who are non-lawyers, lawyers may have a role to play in providing independent legal advice to parties.
As opposed to litigation mediation is much cheaper and less time-consuming. Nonetheless, since mediation often involves the presence of both parties in the same room at the same time, parties should consider carefully whether they are good candidates for mediation. If one or both parties are emotionally unsettled as a result of divorce or separation and carry around hatred and bitterness then mediation may not be advisable in such circumstances. In situations of domestic violence, mediation is definitely not recommended as it entails both parties being present at the same time. If one party has an immense fear of the other party this will not produce an atmosphere that is conducive to the mediation process. Parties need to feel that they are equal in terms of bargaining power so that one party will not feel coerced or over powered by the presence of the other party. Furthermore, while parties do not need to be friends with each other, there should be a level of trust in each other as the process may involve the disclosure of financial and other confidential information.
The most important requirement for the mediation process to work is that both parties must be serious about working with an impartial third party to arrive at a settlement. As long as two parties are good candidates for mediation this is a valuable means of settling disputes and avoiding the expense and time associated with litigation.
Finally, while mediation may not always settle all of the issues it will significantly narrow the issues that need to be dealt with in court and thereby reduce the expense and time associated with court appearances.