Understanding Mediation in Missouri: How It Could Help With Your Divorce, Custody Dispute, or Other Legal Matters
Post date: Jan 25, 2013 10:08:35 PM
It has become apparent to me that there is a lot of misinformation when it comes to mediation. Because of this, I thought it might be worthwhile to write a post explaining the process of mediation, and the potential benefits associated with mediation.
First things first, what is mediation?According to Missouri Supreme Court Rule 17.01(b)(4), "Mediation is a process in which a neutral third party (the mediator) facilitates communication between the parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties." Based on this definition, it should be clear that the mediator is, on one hand, an integral piece of the process but, at the same time, the mediator cannot unilaterally resolve the issues. In fact, mediators are trained to not force a settlement. The ultimate objective of a mediator is only to help the parties come to their own agreement on their own terms. Why should you consider mediation to resolve your dispute?By it's nature, a lawsuit is an adversarial process. In a given lawsuit you typically have the plaintiff versus the defendant. The conflict created in this system is sometimes necessary and impossible to overcome. The court system is designed to deal with this type of conflict because, at the end of the day, we have judges in place to decide and resolve all issues. That being said, I have heard the phrase (and have preached it to my clients) that "the worst agreement reached by the parties is better than the best decision that is made by the judge." Essentially what this means is that if you and the opposing party can come to an agreement that you are both at least somewhat satisfied with, it is more than likely better in the end than having a judge make a decision after listening to your testimony in court and spending a few minutes reviewing your file. The judge then moves on to another case and you are forced to literally live with their decision.
To take it a step further, another common saying is "a fair decision by the judge is one where neither party is happy." Pretty interesting. To drive the point home, the idea of mediation is for the parties to resolve their conflict on their own -- with the help of a mediator -- in order to maximize satisfaction. My own personal take is that mediation is resolution-oriented while litigation is typically conflict-oriented.
How long does mediation take?
To give a completely unsatisfactory (yet honest) answer, it just depends. But the mediation process is not a "one size fits all" procedure. I can tell you that the first session is usually scheduled for 2 hours. Additional time may be necessary, depending on the progress made during the first session and how many issues need to be resolved.
To put it another way, consider this example: Let's say you and your spouse have been married for 10 years, have 2 children, own property and have some debt. It has taken you 10 years to get to where you are now, do you really expect to be able to resolve all of your disputes in 2 hours? A typical contested divorce usually lasts, at a bare minimum, 6 months. Mediation is not a miracle cure by any means, but if it results in a mutually-agreeable settlement after a few sessions, it is likely quicker, cheaper and more satisfying than a drawn out court battle.
What are the benefits of mediation?
This question is probably best answered in bullet points:
In mediation, both participants in the conflict decide the resolution. Not the mediator. Not the judge. To put it another way, mediation empowers the parties -- they have the ability to make their own decision, to choose their own fate.
Specific needs and issues are addressed in mediation, rather than following general standards used by the court. For example, a court may decide that the marital residence must be put up for sale and the parties split the proceeds. In mediation, the parties can agree to do whatever they think is best with the house. Maybe they want to rent it out? The options are almost limitless when the parties are searching for common ground to resolve the conflict.
The participants to the mediation can learn the skills necessary for resolving future disputes. Mediation can train the parties new ways to deal with and manage conflict.
The parties are encouraged to be on the same page during mediation. The objective is no longer conflict-related, but, instead, it is now resolution-oriented with the common goal being resolving the issues at hand.
The parties do not have to get along with each other in order to successfully use mediation. In fact, the process is designed for people in conflict.
The mediation process itself is confidential. This encourages open and honest discussion during the process. The information only comes out once a settlement is reached by both parties.
It can be faster than litigation, which, in lawyer speak, means saving money.
Mediation can be used hand-in-hand with litigation. Just because you have a pending court case does not mean you cannot use mediation. If mediation is used and an agreement is reached, then the pending case can either be resolved or dismissed.
Hopefully this helps to explain and clarify the mediation process a little. More and more courts (and judges) are not only recommending mediation, but also ordering mediation in certain cases. Although mediation is not a miracle cure, it is definitely worth considering when a conflict arises.
**If anyone is interested in participating in mediation, the Law Office of Calan T. McConkey LLC offers mediation services for the following counties in Missouri: Clay County, Ray County, Platte County, Jackson County. Calan T. McConkey is a qualified domestic relations mediator under Missouri Supreme Court Rule 88 and Missouri Supreme Court Rule 17.**
**In addition to domestic relations mediation, mediation services are also offered in the following areas: landlord tenant disputes, dissolution of marriage (divorce), paternity, modifications, and other civil matters. For more information, please contact the Law Office of Calan T. McConkey LLC at 816-476-6400.**