Skip to main content

3 Things that Mediation is NOT

By Anonymous
Mediation has become a popular alternative to court proceedings, with mediators resolving disputes of all kinds ranging from private family matters to the very public NFL lockout.  But there is still a significant amount of confusion about what is mediation and what can a mediator do for you.  Some of the most common misconceptions follow:

1. Mediation is NOT Arbitration!

Many people assume that the purpose of a mediation is to have a trained third party help them make decisions by choosing a solution when they can't agree, and this misconception has been popularized by shows like Untying the Knot.  Bravo TV's show about a New Jersey divorce attorney and mediator, Vikki Ziegler, follows one issue (usually property division) through brief evaluation and "recommendation" sessions.

In order to be able to fit the resolution of an issue into a half hour of drama, the show has a formula based on Vikki pushing the spouses to settle their disputes by making a "recommendation" that often sounds much more forceful:  in one of the previews, Vikki tells the husband to "zip your mouth and shake her hand."  While this might result in settlements in many cases, the formula for this show is much more akin to arbitration or case evaluation than mediation.

When we are involved in an argument or a conflict there is an understandable tendency to want to win, or to be vindicated as the one who is "right".  If we can't convince the other side that we're right and they're wrong, then we want someone else to make the decision.  If you go to court to resolve a dispute and are unable to reach a settlement, the judge (or in some cases a jury) will be that someone.  If you hire an arbitrator then they will make the decision instead of a judge, but mediation is something different.

Mediation is about having help to make the decision together, instead of the mediator making the decision for you.  That may sound harder than letting someone else decide but it is usually much more rewarding, especially in divorce cases.  Even a trained professional is never going to know as much about your life and your goals as you do.  Why let them decide?

2. Mediation is NOT one attorney for two people!

Many people choose mediation because they want the advice of an attorney but don't want to pay for two attorneys.  While a mediator who is also an attorney can provide you with legal information, they cannot advise each of you individually.  This is an important, and sometimes complicated distinction.

The reason a mediator can't give you legal advice, is because the mediator doesn't represent you or the other party, nor does a mediator represent both of you. It is not ethical or practical for an attorney to represent both parties in a case. In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits an attorney from representing a client if that representation will be directly adverse to another client.

It is not reasonable to believe that an attorney can represent two adverse clients at the same time in the same action and look out for both of their interests. It is possible to have an attorney act as a mediator but in that case the attorney does not represent either party and is not looking out for either of your individual interests as an advocate would. Instead, the role of a mediator is to assist the two parties in reaching an agreement that they are both satisfied with, regardless of whether that agreement in the opinion of the mediator might favor one party or the other.  That is why many people in mediation will consult with their own attorney, at least briefly, at some point in the mediation process so they have the opportunity for individual advice as well.

3. Mediation is NOT Meditation!

 Okay, I know this one seems obvious but in a world where search engines control the flow of information, there are still some people who think meditation and mediation are the same thing.  If you search for iPhone apps relating to mediation, you receive mostly meditation apps.  In addition, mediation and meditation do have some things in common.  Mediation involves listening and channeling your goals before making decisions.  Also mediating a dispute is more likely to lead to enlightenment and relaxation than letting someone else decide for you.

So if you're looking for a way to resolve your dispute that is more self-aware, then mediation might be for you, even though it's not meditation.

If you want to learn more about mediation click here, or contact Attorney Justin Kelsey.


Labels:

Comments

Post a Comment

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

By
In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be...
76 comments
Read more

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

By
UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Ch...
Post a Comment
Read more

Online Tool for Creating Parenting Plans

By
It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between ...
Post a Comment
Read more