Mediation is a process where two parties meet with a neutral third party to try to come to an agreement outside of court. Some people hesitate to try mediation because they worry they won’t be as protected as they would be if they went to court with an attorney to represent them. However, some misconceptions about mediation need to be addressed.
First, people worry that being fully open during mediation conversations could hurt them later if the mediation is not successful. Both the law and public policy support the idea that in order for mediation conversations to be productive, they need to remain confidential. Discussions in mediation are protected and confidential, so neither party can use what was said in mediation against the other person in court. The mediator cannot reveal their notes or be subpoenaed to testify in the future. What is discussed within the mediation framework, including the needs, interests, priorities, positions, and proposed solutions, stays within the context of the mediation. This level of confidentiality is essential to ensure that productive conversations can take place and underlying needs can be addressed.
Second, some people worry they will only have access to some of the financial information they need during mediation to be fully informed about the marital estate. Sometimes only one party handles the finances, there are separate property issues, and there are disagreements regarding assets or concerns about the dissipation of assets. In mediation, full disclosure of financial information is a paramount expectation. To address such concerns, financial experts can be involved in the mediation process to ensure that both parties are fully informed. Assets are appraised and valued, and business valuations and income streams are analyzed. The mediation process involves the appropriate professionals, as needed, to ensure a fully informed agreement but in a much more efficient and cost-effective manner.
Finally, some people worry they will not receive proper legal advice during mediation. While mediators cannot give advice, they are not passive either. Mediators offer legal information for the parties to consider as well as suggestions in guiding them to a solution that fits their interests. As divorce undeniably involves legal questions, parties are encouraged to consult with an attorney not only to review the terms of their agreement but to speak with them along the way. Mediators welcome the onboarding of consulting attorneys so that this added layer can be a part of the process.