By: Sheryl J. Seiden, Esq.
Q. What is Alternative Dispute Resolution?
A. Given the backlog in the court system and in an effort to reduce the emotional and financial strain of litigation, alternative dispute resolution (“ADR”) is a means to resolving divorce and family law matters expeditiously without litigation. There are two types of ADR - mediation and arbitration. Mediation is a forum whereby the parties retain a mediator who will assist them facilitate a settlement. Mediation is a confidential proceeding and the details cannot be used in litigation. A mediator will assist in bridging the gap between the parties’ positions. While a mediator can make a recommendation on the unresolved issues, the mediator’s recommendations are not binding. Arbitration is a forum whereby the parties present their issues to an arbitrator similar to how the issues would be presented to a Court. The arbitrator will render a decision on the disputed issues and that decision will be binding.
Q. What is the Difference Between an Attorney and a Mediator?
A. Most often, and preferably, the mediator is an attorney. However, the mediator cannot advocate positions for the parties, nor can the mediator provide legal advice. The mediator cannot represent the parties or either party in the divorce proceedings, even if the parties sign a waiver. While the mediator can provide guidance and help structure a reasonable settlement, the mediator cannot replace the need for a party to obtain legal counsel.
Q. Do I Need an Attorney if I Mediate?
A. While parties can mediate without attorneys, it is recommended that each party consult with an attorney prior to engaging in mediation in order to understand their rights. The attorney can help prioritize the party’s goals and suggest how to advocate to achieve those goals. The attorney can be a resource to guide you through the mediation process even if the attorney is not present at the mediation. An attorney can then prepare (or review) an agreement memorializing any settlement reached in mediation. An attorney will be needed to prepare the paperwork needed to proceed with the divorce – a mediator cannot represent either party or the parties in the divorce proceedings even if the matter is resolved in mediation.