Mediation is a voluntary problem-solving process in which parties hire a neutral third party to help them negotiate an agreement. The attorney mediator does not legally advise or represent either party, or make decisions for the parties. The attorney mediator may provide information to the parties, but a party who wishes legal advice consults with a separate attorney. The primary function of the neutral mediator is to manage the process for the parties, so that they can reach an agreement in a more cooperative and less combative manner. Therefore, the mediator assists the parties in the following tasks:
- Identifying the issues between them
- Collecting all necessary information to address the issues
- Developing options
- Discussing the advantages and disadvantages of each option
- Identifying their common interests
- Identifying their needs, and understanding the other’s needs
- Reaching an agreement both parties can accept
Parties who use a mediator may still appear pro se in any court action pertaining to their divorce or legal separation, and they may prepare their own documents for the court system, if they wish. However, the Wisconsin Supreme Court now allows an attorney mediator to prepare and file documents with the court system that confirm and implement the parties’ agreements in their action, if both parties give their informed consent, in writing.
The advantages of mediation include the following:
- It can be a cost-effective process, especially compared to a traditional “litigation” model.
- Parties retain control over the process.
- It is a confidential process, considered “settlement negotiations” by Wisconsin statutes, and neither party may testify to a court what offers were made by the other in mediation.
In my view, a possible disadvantage of mediation may occur if there is a “power imbalance” between the parties, so that one party feels less able to stand up to the other, and may “give in” to an agreement they may not truly want. It is important for people to reach out to their own attorney for legal advice if they have any questions or concerns about the agreement being discussed.
I have had over 300 hours of training in mediation and collaborative law, which applies mediation principles. I currently serve as a mediator for the Dane County Bar Association’s Case Mediation Program, and I have helped many, many couples reach agreements in their divorce and legal separation actions using the mediation model.