As you contemplate legal avenues to divorce, you may wonder: is a mediator like a judge?
The short answer is no, a mediator is not a judge. Keep reading to learn more about how mediators and judges differ in the context of divorce.
Without delving into the intricacies of divorce law, two key differences between a mediator and judge are their authority and approach in divorce proceedings.
What Authority Do Divorce Mediators Have?
A mediator herself does not make, nor enforce, decisions or rulings. Your mediator does not have the authority to tell you or your partner what to do or how to resolve your case. A mediator is the neutral facilitator whose objective is to help spouses amicably discuss problems and reach mutual settlement. Mediation is a groundbreaking alternative to traditionally contentious styles of divorce, where parties cooperate with honesty and respect for rules and laws and all parties. Click here to learn more about what the divorce mediation process is like.
In litigation, judges hear from both parties, each usually represented by their own individual legal counsel. Court hearings are finalized by the judge granting a divorce order with a legally binding ruling.
A Judge Rules—A Mediator Resolves
One question to ask yourself in ultimately deciding between litigation and mediation is whether your aim is to receive a ruling or achieve a resolution.
Too often, when divorce goes to court with lawyers, couples pay more for a less mutual benefit than what mediation would have otherwise cost and achieved. Why?
Both a judge and mediator are impartial, however their objectives differ in nature. A judge is akin to a referee who has the authority to make a definitive ruling in favor of one party, which is why divorce court can leave one party feeling like they have “lost” to the other party who has “won”.
Unlike a mediator, a judge does not meet with spouses, precluding the context that private discussions provide. A judge is in fact an officer of the court, a position of authority that administers and honors the law. A judge’s responsibility is to rule justly and fairly, in consideration of evidence and facts, in accordance with legal precedents and statutes.
A judge, however, is not necessarily responsible for bridging the gap between two parties. The decision of a judge is legally binding, even if all parties disagree.
Mediation is far more nuanced and personalized to each individual case, as settlement requires consensus and mutual understanding and agreement. A mediator is committed to fostering discussions where parties arrive at a win-win settlement, so that spouses may part ways in the mutually beneficial interest of each party starting their own new chapter.
Is a mediation settlement less “solid” than a judge’s ruling? Absolutely not! The mutual understandings of mediation are transcribed into a legal Agreement, which becomes legally binding if both parties agree to it and the court enters a Judgment on the Agreement. Click here to learn more about the Rules And Laws Of Mediation.
Divorce Privacy & Timelines
Divorces taken to court unfold far differently than privately mediated divorces.
Mediation takes place in the privacy of the mediator’s office, with only the spouses and mediator present, all three of whom have typically signed a legally binding confidentiality agreement. This confidentiality agreement stipulates that all statements made during mediation are considered privileged communications that cannot be referenced or shown in court. This allows the parties to become much more creative in their issue-solving than they ever would be able to do in court.
All statements or actions made in the presence of a judge are therein heard and witnessed by the eyes and ears of all who are present in court, and become a matter of public record.
Furthermore, a mediator may be far more flexible in their schedule, whereas a judge will hear your case per court-assigned dates that can be months apart.
Divorce In Your Hands, Not A Judge’s
Known as the “Divorce Whisperer”, Colleen McNamee is a Certified Master Divorce Mediator who empowers spouses to take their divorce into their own hands. As the CEO of McNamee Mediations, a leading mediation firm in Orange County, California, Colleen McNamee helps couples legally separate peacefully and productively—even in the most complex cases.
If you have any questions about divorce mediation, give McNamee Mediations a call today to help you move forward.
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