What is the Difference Between Meditation and Negotiation?
Many people don't understand the difference between mediation and negotiation. Mediation assumes
both parties want to reach the fairest agreement possible. In a negotiation, on the other hand, each
party is looking to make the best deal they can for their side and tough luck to the other side if things go
south afterward.
Since alternative dispute resolution was first formalized in the 1970s, divorce mediation in many
jurisdictions has become the norm rather than the exception. The majority of jurisdictions in the United
States require divorcing couples who can't agree on such things as custody and support to attend
mediation.
When ordered by the court, mediation can be free or it can be a cost that is born by the litigants,
depend on the circumstances and the jurisdiction. Different states have different practices. In cases
where children are involved, an increasing number of states (currently over two-thirds) have made
mediation mandatory. With mandatory mediation the cost issue will become more prominent moving
forward. The current economic crisis means that less money will be available to the civil courts as time
passes. As the years pass court-ordered mediation costs will likely fall upon the litigants.
There is a danger in the increased use of alternative dispute resolution practices by the courts. It may be
that divorcing couples will avoid mediation until ordered to enter it. All citizens must own their own
dispute resolution process. Any divorcing couple can decide between themselves to enter into legally-
enforceable mediation at their own expense, any time they choose.
Frequently a court-appointed mediator will require the parties to be represented by counsel. This
practice can come as quite a surprise to those who specifically choose mediation in order to avoid our
adversarial system of dispute resolution. Couples must be clear with counsel if they don't want
adversarial tactics.
In voluntarily divorce mediation, it is not recommended for one spouse's lawyer to act be the mediator.
When the parties agree to proceed in this manner for whatever reason, the spouse who is not
represented by the lawyer/mediator should be required to sign a waiver in order to assure the
mediation agreement is worth slightly more than the paper it is printed on.
Keep in mind that mediation agreements are legal documents, like any other contract. As such, the
courts can be called upon to enforce them. Changing a signed mediation agreement at a later date is no
less onerous than changing a divorce settlement that did not arise out of a mediation process. If you are
emotionally drained at the end of a mediation process, do not sign anything and do not allow yourself to
be bullied by a busy lawyer.
The reasons for choosing mediation are several. Mediation is more flexible in regards to the division of
household property. Mediation is vastly less expensive than court confrontations. And finally, court
proceedings public property, meaning that you lose privacy on matters that voluntary mediation would
keep confidential.