Mediation vs. Arbitration
Mediation is oftentimes confused with arbitration. In mediation, a mediator acts as a neutral third party to help the parties reach an amicable resolution. Put simply, a mediator helps facilitate a conversation between the parties. A mediator is not a judge or a jury and does not make a decision for the parties. However, in some instances, mediators can provide general information to the parties regarding the law. To the contrary, an arbitrator acts like a judge making a decision for the parties. This is an important distinction because parties often look to the mediator to make the decision; however, that is not the role of the mediator.
Mediation vs. Conciliation
Some mediators focus on reconciliation, or “conciliation.” But most do not. If someone hopes to reconcile with his or her spouse or ex-boyfriend or girlfriend, mediation may not be the right choice. There are, however, conciliation professionals that may help the parties take strides towards reconciliation.
What Can Be Mediated?
In the family and matrimonial law context, nearly every type of dispute can utilize mediation in one form or another. To explain, mediation can be utilized in the following scenarios:
• Prenuptial/post-nuptial agreements
• Child support
• Spousal maintenance
• Child custody and visitation (i.e., a parenting plan)
• Equitable distribution in the divorce context
• Pet ownership/custody disputes
• Family business (e.g., between spouses, parents and children)
• Communication issues between family members
• Fee disputes between clients and attorneys or other professionals
In most circumstances, mediators will not mediate cases with domestic violence allegations or orders of protections; however, in some instances mediation can still be an effective settlement device so that safety issues and the imbalance of power is properly addressed.
When Does Mediation Take Place?
Mediation can take place at anytime, anywhere. It can take place at any stage during the litigation process or it can take place before the parties have gone to court. In some cases, parties may try mediation and then later decide to litigate their dispute. However, parties can then come back and try mediation again once the parties have gained more information.
This is an excerpt from my new book “Onward and Upward: Guide for Getting Through New York Divorce & Family Law Issues” available on Amazon, Kindle and iBooks. This except is from my Chapter on Mediation. I am a trained mediator for divorce, child custody and visitation disputes, and commercial mediation. The book is chalk full of great advice on a myriad of family law issues ranging from prenups, child custody disputes, and divorce/annulments. The book’s special sauce is that it has over 48 authors, including many nonlawyer authors, writing on both legal and nonlegal topics. More info on the book can be found here.