Mediation: What It Is and Isn’t

Mediation: What It Is and Isn't By Sanford E. Balick, Esq.{3:00 minutes to read} Couples are attracted to marital mediation for several reasons:

  • It’s something more civil than being in court; and,

  • Mediation may be considerably less expensive than hiring attorney combatants.

Beyond this, couples have divergent notions of exactly what mediation is.  After all, unless someone’s had previous experience with it, they’d have little reason to know.

Mediation is often confused with arbitration, both of which are under the big tent referred to as ADR or Alternative Dispute Resolution. 

  • Mediation is essentially a negotiation process, conducted by a mediator. Its end product is a mutual agreement of the participants.

  • Arbitration is a kind of private adjudication. Its end product is usually referred to as an award, akin to a court judgment.

Generally speaking, mediation agreements and arbitration awards are enforced by the courts and are rarely subject to successful challenge or nullification.

Mediation is used in different settings, and the styles of mediation may vary considerably.

Business Mediation

Mediation of a business dispute is frequently a single-day affair, and the mediator is very hands-on in trying to wrench an agreement from the factions involved by day’s end.

I like to kid that, at least in New York, business mediation operates by the LaGuardia principle:  Agreement comes, if at all, within ninety minutes of the first flight that a participant has to catch from the New York airport closest to the mediation venue.

Marital Mediation

Marital mediation is very different. It operates on a schedule familiar to therapists. Sessions of 1 to 2 hours are scheduled, typically a week apart, until all issues are resolved.

There is no law that dictates this practice, but it has proven effective as it allows time for spousal discussion and reflection outside of sessions. It also provides the parties time to obtain and consider important information or to consult with an accountant or attorney, for instance.

Mediation places a premium on information disclosure and respect for the couple’s notion of fairness. The process is intended to help develop this sense of fairness through discussion and understanding of post-divorce needs. Where children are concerned, a plan for shared parenting is mutually developed.

There are different approaches to marital mediation, but they all converge on this point: The couple as the ultimate decision makers.

Next installment:  The mediator: Bystander, participant or something else?

Sanford (Sandy) Balick, Attorney & Mediator, NY Sandy Balick signature
Sanford E. Balick, Esq.
Founder & Principal Mediator
Consensus Point Mediation, LLC.

Phone: (646) 340-3434
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