Limitations of Mediators

Is Mediation Binding Upon the Parties?

Some who are going through a divorce, custody or family law matter are interested in pursuing mediation. Mediation can be a positive option for many who want to reach an out of court settlement.

But many are confused about the limitations of mediators. Some wrong think that a mediator can divorce parties just like a family court judge. Or, some wrongly think that a mediator can make the parties agree.

Put simply, some conclude that they can keep their case out of court entirely. They might even think the mediator can sign the divorce decree like a judge would.

This belief is incorrect. What a mediator does is have the parties come meet them for a session (or even multiple sessions). A mediator then tries to engages the paries in a conversation where they discuss their case in the hopes that they can come to an agreement.

A mediator ordinarily gets parties talking about their various interests and positions. Both parties then talk about potential scenarios where they might be able to forge a middle ground. In some cases, the mediator might come up with various ideas to try to help the parties.

Certain mediators might be more decisive in terms of telling the parties what they think the court might do if the court were to be resolved at a trial or hearing. Other mediators might not give their opinions nearly as much, but might view their role more as helping the parties engage in a discussion.

Especially in cases where there are multiple areas of disagreement, mediation normally takes a lot of time and many meetings for the parties to reach an agreement. This is the opposite of what some individuals might think. Some might think that mediation is much more expeditious.

If a settlement can take place in mediation, the mediator usually puts together a document that sets forth the understanding between the parties. The parties might sign that document. They then present this document to lawyers that they have hired to file the case, complete the formal settlement paperwork and put it before the judge to conclude the case.

In other situations, a mediator might complete the actual settlement documents. But even where that happens, lawyers are needed to draft and file the initial pleadings to get the case underway prior to presenting the settlement paperwork to the family court judge.

In the end, it is vital to understand the role of the mediator. A mediator is not a judge. They cannot sign paperwork to conclude a case like a judge. They also cannot make the parties agree to anything. It is true as well that most couples to a divorce end up with three lawyers: the mediator (who is usually a lawyer), a lawyer for the husband and a lawyer for the wife.

Mediation is still a great option for many parties. For those who want to avoid a litigated divorce, it is certainly an option that can be worth pursuing. It is just important to understand the limitations on mediation.