Family Mediation - How Does it Work?
Mediation is a voluntary and informal process in which a neutral person facilitates
settlement discussions between disputing parties. Any settlement is voluntary.
This page contains answers to common questions about Family
Mediation and how the mediation process works.
- What is family mediation?
- What issues can be mediated?
- Who participates?
- What role do attorneys play in family mediation?
- What is included in the Agreement to Mediate?
- What is the mediator's role?
- What training is required to be a mediator?
- How long does mediation take?
- How much does it cost?
- When is mediation not appropriate
- What are the benefits of mediation?
Family mediation is a confidential decision-making process in which a
neutral facilitator assists parties in reaching informed settlement of
questions arising from separation, divorce, or other family conflicts. The
process provides an opportunity for the parties to discuss their relationship
in a safe environment which focuses on the future. Family mediation can be
used for any family conflict, including separation and divorce. The decisions
are made by the parties themselves and no rights are waived.
Any family conflict can be addressed in mediation. The Family Court in
Greenville County mandates mediation of separation and divorce before a final hearing
can be held on contested issues.; Examples of issues which might be
brought to voluntary mediation include parenting, child support and alimony,
pre-nuptial agreements, post-divorce conflicts, and grandparent visitation.
The parties meet with a mediator in a confidential conference. Attorneys
for the parties may be present in some cases. The mediator may also meet
separately with each party.
The participation of any party outside the parties and the mediator must be
agreed to by all concerned.
Mediators encourage each party to consult with an attorney, and, at a minimum
to have an attorney review any agreement before the agreement is signed by the
parties and/or approved by the Family Court. The attorney's role will be
determined by the attorney and client, depending on the services needed and
requested. Each client is responsible for consulting with his/her attorney in
order to have an understanding of his/her legal position. Attorneys may
prepare documents for court approval and divorce proceedings, and may
participate in court hearings for filing the documents.
The parties sign an Agreement to Mediate which provides for the
confidentiality of the process, the agreement of both parties to produce
records requested by the mediator, payment of the mediator's fees, and
protection from subpoena or other involvement in litigation for the mediator.
The mediator is a neutral facilitator and does no represent any party.
Although the mediator has an obligation to insure that a fair decision making
process takes place, the mediator cannot insure that the terms of an agreement
are fair. The mediator will focus discussion on planning for the future and
try to identify common interests of the parties. The parties, however, are
responsible for the outcome of the mediation process.
the mediator may suggest that certain questions be referred to an
accountant, an appraiser, a therapist, or other professional consultant.
In South Carolina a family mediator must be a licensed attorney or mental
health professional in good standing and must complete a 40-hour family
mediation course to appear on the court certified list of mediators. Mediation
training, however, is available to anyone, and parties may select a mediator
who is neither an attorney nor a mental health professional. Ethical standards
prevent an attorney mediator from providing legal advice to mediation clients
and prevent a mental health professional from providing therapy to mediation
clients.
The complexity of issues and work done by the parties outside the mediation
process determines the amount of time needed for mediation.
Mediators usually charge hourly fees which are shared by the parties.
Arrangements for payment should be made in advance between the parties and
with the mediator. Mediation is usually less expensive that litigation.
Mediation is not appropriate if the parties cannot speak honestly and
freely to each other, with the mediator's assistance, because of the emotional
instability, intimidation, or lack of ability to understand the process on the
part of either party. A history of physical abuse or substance abuse on the
part of either party should be disclosed to the mediator and may cause the parties or
the mediator to decide that mediation is not a good option.
Mediation is private and practical, and give clients control of the
expenses and scheduling of the process. Mediated agreements encourage the
preservation of relationships between parties and have somewhat better
"staying power" than court ordered structures or traditionally
negotiated settlements. No legal rights are waived by participation in
mediation.
Mediation is usually less expensive than litigation, and provides for more
creative settlement alternatives.
