The mediation process involves the use of a third party to guide the parties to an agreement. Unlike an arbitrator, the opinion of a mediator is not binding on the parties. However, once an agreement is reached and signed by the parties through mediation, the agreement is binding on them.
A mediator can be anybody and no license is required for a person to mediate. However, since mediation and its goal—the reaching of an agreement—usually requires compromise, you do not want a mediator to be anyone else but an attorney. That is because if you are compromising or giving something up, it is important you know what you are giving up and what your rights would be if you litigated and went to court.
Litigation is not desirable and is terribly expensive and the result is often unpredictable and unjust. However, an attorney-mediator can give you a general range of what is likely to happen in court so you can exercise a well-informed decision about your compromise. If your mediator is a layperson, that mediator does not have a legal reference point and the mediator’s efforts to bring you both to an agreement are fraught with danger.
In every relationship, there is usually a person who is stronger. That is the person that usually wins arguments if they really want to win. That is the person that knows how to make his or her spouse back down. A mediator faced with a couple having unequal powers will do great injustice if the mediator brings the parties to an agreement without first leveling the power playing field. Obviously, if the sole goal of a mediator is to reach an agreement, then it is most likely that the weaker person in the marriage will back down and surrender rights unfairly. A good mediator will immediately spot the stronger spouse and will advise the couple accordingly. The mediator then must guide the couple to an agreement that is within a zone of fairness and if that is not the direction of the mediation, the mediator should terminate the process immediately and advise the couple to obtain separate counsel.
THE GREAT ADVANTAGE of mediation is there is only one attorney involved and, therefore, the costs are going to be at least one-half (1/2) of what they would normally be. In addition, the process, compared to litigation, is less likely to result in damage to whatever is left of the parties’ relationship and the family unit.