Often times, the parties participate in mediation without legal counsel, but the mediator recommends that each party go over agreements reached with separate counsel before signing the agreements. While in theory this is a means of protecting the weaker party, the problem is that both parties are aware of the agreement that each was willing to make. If material changes are requested after consulting with attorneys, it is often difficult or impossible to make those changes because of the terms that were preliminarily agreed to by the parties, as mentioned above.
As a result, I believe that the "safest" form of mediation is where each party is represented by counsel throughout the process. Obviously, this is often not the case. I do not mean to convey that mediation cannot be effective unless each party is represented by counsel. However, the parties should exercise caution when mediating without separate counsel because of the risks involved.
If used effectively, a mediated resolution allows the parties to heal much sooner from their emotional wounds caused by the dissolution of their relationship. Mediation also enables the parties to delve into the underlying reasons they desire certain results and thereby allows for more creative resolutions that might accomplish those needs through means that are more palatable to the other party. However, it is a misconception that mediation is always a less costly form of dispute resolution. It certainly has its benefits, if used effectively. However, if the primary reason for utilizing mediation is cost savings, the parties may not be using it effectively.
Although I mentioned that I have successfully mediated matters in short time frames, it must be noted that those resolutions were merely on issues set for hearing on a particular date and not on each and every issue involved in the case. Furthermore, the parties had spent time and money briefing those issues for the hearing and I was able to review and analyze the tile and the both sides' positions before commencing the mediation.
© 2009 Mark B. Baer, Esq.
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