Why Mediate?

Here are a dozen advantages of mediation. You can expand the text below by clicking on the symbols.

• You’ll gain guidance and empowerment without losing control.
  • Spouses in divorce mediation gain guidance to make informed choices and empowerment to create equitable agreements. But you remain in control of your divorce. Litigation, in contrast, places control in the hands of judges and attorneys. This makes the outcome highly unpredictable. In an age when people feel less control over their lives, mediation allows you to assert yourself as the principal decision maker in a deeply personal aspect of your life.
• Mediation works — and parties stand by their agreements.
  • Studies show that more than 80% of divorce cases settle in mediation.* And spouses are more likely to stand by the terms of a mediated settlement such as abiding by co-parenting schedules and making timely support payments. Why such high compliance? Research suggests that people feel much less resentment towards a settlement when they’ve participated in shaping its terms.

  • ---

    * Kelly J. A Decade of Divorce Mediation Research. Family and Conciliation Courts Review. 1996. 34(3). 373-385; Benjamin M. Irving H. Research in Family Mediation: Review and Implications. Mediation Quarterly. 1995. 13(1). 53-82.
• You’ll save money — a lot of money!
  • Mediation is a lot cheaper than litigation. For example, the average litigated divorce in California costs $45,000 per party. Much of this expense is the attorneys’ costs for discovery, research, witness preparation, depositions, interrogatories, motions, conferences, trials, subpoenas, appeals, and time waiting outside courtrooms — expenses that are likely to be negligible or non-existent for a dispute settled in mediation.
  • Parties in mediation may each consult independent attorneys to provide legal advice as necessary. Their attorneys may also review any proposed agreement before the parties sign it. However, mediation typically entails much less attorney time — and hence much lower total fees — than when spouses litigate their dispute. Further reducing the costs of mediation, the mediator’s hourly rate is shared by the parties.
  • The enormous cost of litigation poses a serious threat to most parties in disputes. A litigated settlement may leave you financially as well as emotionally depleted with little left in the estate after payment of attorney fees.
  • Furthermore, when parties pursue litigation, 90% of cases end in a negotiated settlement, often just days or hours before the case is scheduled for trial. This decision to settle pre-trial usually coincides with the parties’ realization that most of the issues that they’ve been contesting — for example, the amount of child support and the division of property — will be set by a judge according to predetermined formulas. Almost invariably, the parties would have saved tens of thousands of dollars if they’d instead settled through mediation.
• Mediation is a risk-free first resort that doesn’t preclude the option of litigation.
  • Chances are that mediation will keep you out of court. However, if you’re in the minority that isn’t able to reach agreement in mediation, you’re always free to stop mediation and pursue a settlement through litigation instead. Mediation doesn’t diminish any of your rights. It doesn’t preclude litigation. It’s a first resort, a provisional alternative to litigation. You have much more to lose by declining mediation than by trying to first reach a mediated settlement.
  • Even if you can’t agree on every issue in your dispute, you’ll probably agree on many. And each issue that you resolve in mediation will save you money. Furthermore, you can schedule a mediation session at any time to revisit an issue of disagreement — for example, in light of new information, new ideas, or a fresh perspective from the passage of time.
• You’ll protect your children from the often-traumatic experience of a litigated divorce.
  • Children are always the most severely wounded casualties in an adversarial divorce or separation. Often caught in the crossfire and used as pawns, they can suffer untold psychological damage from the ensuing battle between their parents. Compounding this tragedy is the fact that litigation rarely yields an advantage to either party because many of the most contentious issues such as child support and division of property are ultimately settled in litigation according to predetermined formulas.
  • Experience shows that children can be spared much anxiety and depression when their parents choose mediation over litigation. No longer constantly arguing or speaking destructively of one another, mom and dad are now engaged in a process that models constructive problem solving. Indeed, your decision to choose mediation can teach your children a valuable lesson in conflict resolution from which they may later benefit in their own relationships.
• Private and confidential, mediation is a safe harbor for exploring solutions.
  • In order to encourage mediation, California Evidence Code §1119–1120 makes mediation legally confidential. This means that evidence of the mediation — including any verbal disclosures and any draft agreements prepared during mediation — are not admissible as evidence in civil court if no settlement is reached in mediation. (Parties who reach a mediated settlement will usually elect, however, to make their agreement legally binding — see Mediated settlements are legally binding below.)
  • Privacy is a second benefit of mediation. In a litigated divorce, for example, records and other court documents such as complaints, answers, motions, and exhibits of financial information are public documents, available for inspection by anyone via the clerk’s office of the Superior Court in the county where the litigation was filed. Settlement through mediation, however, keeps most of the parties’ personal information private.
• Mediated settlements are legally binding.
  • One of mediation’s great strengths is the voluntary participation of parties. No one is ever coerced into a mediated settlement, and parties only reach a settle-
    ment if they are satisfied with its terms. As an added safeguard, parties may review any proposed settlement with their respective attorneys. However, once the parties are ready to sign a mediated settlement, the settlement can be legally binding. For example, the mediated settlement of a divorcing couple would be filed with the court as a legally binding Marital Settlement Agreement (MSA).
• You won’t destroy your relationship — and you’ll be glad you didn’t.
  • When a party pursues litigation, the other party perceives the suit as a hostile act and responds in kind. That’s how litigation works. For commercial disputes such as between corporations, parties need not concern themselves with their counterpart’s sensibilities. To corporate entities, the courtroom is just another forum for the conduct of business, an extension of the marketplace.
  • In divorce, family, and relational disputes, however, the parties’ sensibilities matter greatly. That’s because interpersonal disputes involve relationships that generally persist long after the parties have reached a settlement.
  • For example, divorced spouses often need to continue co-parenting their children through sports events, music recitals, graduations, weddings, funerals, and the birth of grandchildren. Mutual friends and extended families may also continue to connect spouses long after their divorce. Unfortunately, we often underestimate these realities, wrongly supposing the relationship will end immediately after the divorce.
• Mediation won’t deplete you emotionally.
  • No one enjoys conflict. Debilitating at its worst, it can exact an unbearable mental toll as people adopt combative postures that distract them from their jobs, their health, their friends, and members of their family.
  • Mediation won’t dispel the anger, loss, hurt, frustration, or sadness you may feel. But it will transform your relationship to the conflict by engaging you in a constructive conflict resolution process. Most importantly, mediation will leave you sufficiently intact to move on with your life once a settlement is agreed. No wonder parties report considerably greater levels of satisfaction when they choose mediation over litigation.*

  • ---

    * Kelly J (ed). Empirical Research in Divorce and Family Mediation. Mediation Quarterly. 1989. 24(1).
• Speed: More efficient than litigation, mediation proceeds at your own pace.
  • Mediation is efficient as well as effective. Approaching a dispute as a problem rather than a contest, it directs energy into attacking the problem rather than each other. Indeed, parties who choose mediation typically resolve their dispute in substantially less time than those who resort to litigation.
• Convenience: Schedule mediation sessions to suit your lifestyle.
  • Unlike the court system — a bureaucratic process that makes little concession to the convenience of its clients — New Resolution is client friendly. We schedule mediation sessions during weekdays, evenings, and even weekends to best suit the professional and personal needs of our clients.
• Recognition and dignity: Invaluable qualities you’ll surrender in litigation.
  • Unlike judges, mediators issue no rulings on the rights or wrongs of either party. As such, you won't find vindication in mediation. (Nor will you likely find it in litigation either.) However, divorce mediation will provide you with recognition. You’ll be heard and understood by the other party, often for the first time. And you won’t have to make split-second decisions that affect the rest of your life in a crowded courthouse corridor. In short, you’ll experience a measure of dignity that you would never find in the adversarial process of litigation.