The Rules And Laws Of Divorce Mediation

Divorce is usually depicted as a battle. So it’s no wonder that most assume that the only way to proceed is to “lawyer up” and fight to the bitter end. However, the notion that divorce requires that each party retain an attorney, or that litigation is inevitable, is a myth and misconception. 

For those who seek a fair settlement without the costs and time of traditional divorce, you may be wondering if and how divorce mediation can truly serve your best interests. 

There is an old saying that says “all is fair in love and war.” However, mediation is anything but “anything goes”. A skilled mediator facilitates negotiation to the highest degree of fairness, one that is traditionally thought to only be attainable in the presence of a judge. Mediation is in fact private, without judges or juries, but with ground rules and laws to ensure that parties treat one another with respect in order to mutually arrive at a settlement. 

Ground Rules Of Mediation

Mediators may impose ground rules that are customized to fit each unique case. Beyond the custom ground rules of each case, here are three standard rules of mediation:

Mediation Is Voluntary 

Attending and cooperating with the mediation is completely voluntary. Neither party is required to come to an agreement and either party can opt out of the mediation at any time. The objective of mediation is to amicably arrive at a mutual understanding, which is then transcribed into a legal Agreement. This Agreement becomes legally binding only if both parties agree to it and the court enters a Judgment on the Agreement. Click here to read about what makes couples good candidates for divorce mediation.

Mediation Is Confidential

In a traditional divorce, each spouse retains their own attorney to negotiate on their behalf, and, if the parties cannot arrive at a settlement, they will proceed to divorce litigation in family court. Divorce mediation is entirely confidential; all matters are discussed and all decisions are made privately. In the privacy of the mediator’s office, parties may talk about important and/or sensitive topics freely and openly.

Mediation Is Privileged 

Mediation is privileged, which means that statements one makes during mediation cannot be used against the party later in Court or other legal proceedings.

Legal Principles Of Divorce Mediation

Colleen McNamee, CEO of McNamee Mediations is both a lawyer and Master Mediator. It is important to hire a divorce mediator familiar with the laws of your jurisdiction, which may vary throughout different parts of the United States. However, general principles often apply.

Voluntary Participation is the principle that divorce mediation is a voluntary process in which both parties are not required, but rather willingly agree to resolve their disputes outside of court. 

Impartiality is the principle that the mediator is impartial and neutral in facilitating the process of resolving issues and negotiating settlement between the parties. A mediator does not act as a lawyer for either party.

Confidentiality is the principle that mediation sessions are conducted privately, with only the mediator and parties involved. The information that is exchanged during mediation is generally not admissible in court. 

Good Faith Participation is the principle that both parties engage in good faith, actively working towards a mutually acceptable resolution

Open Communication is the principle that parties communicate openly and respectfully in expressing their concerns, needs and interests. 

Full Disclosure and transparency are the principles that both parties provide full and honest disclosure of all relevant financial information during mediation.

No Coercion is the principle that mediation is conducted without either party being coerced or pressured into accepting agreements that they are not at ease with.

Fair & Peaceful Settlement With A Divorce Mediator

Known as the “Divorce Whisperer”, Colleen McNamee is a Certified Master Divorce Mediator and the CEO of McNamee Mediations, a leading mediation firm in Orange County, California. With her extensive experience across a wide range of complex cases, Colleen McNamee is renowned for her ability to help couples in legal separation peacefully resolve their disputes and arrive at mutual settlement.

If you have any questions about divorce mediation, give McNamee Mediations a call today to help you move forward. 

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