The Mediation Process


The Mediator remains neutral, non-judgmental, compassionate and unbiased while listening to each spouse. The Mediator creates a safe space for the couple to meet; emotional or psychological intimidation is not allowed; physical abuse is reported. Hurt and anger are valid emotions; how they are expressed are within limits defined by the Mediator. While facilitating sessions, the Mediator requires each spouse to treat the other with civility, fairness, and equal time to speak. The Mediator can help the separating or divorcing couple find their voices so each can express themselves and be heard on a more equal basis. The Mediator teaches and applies several different techniques to promote productive and forward-looking conversations between the spouses, both in and out of session.  From the onset of the mediation, the parties and their Mediator will set the ground rules through agreement and cooperation to profoundly affect the order of the proceedings, the parties’ collective and individual analyses, and the general dynamic of the settlement discussion. 

The Mediator, while acting as the Financial Neutral in the Divorce Mediation process, works with both spouses, either together or while in caucus, facilitating a negotiated settlement. Transparency, including financial disclosures, is agreed upon by each spouse at the onset, literally driving this process. Mediation does not use the subpoena, formal Discovery, or Deposition.  As Mediators, we ask the couple to provide the information needed so that we can do our jobs, no more and no less. Given this information, the Mediator/Financial Neutral works with the couple to evaluate their Assets & Liabilities, Income & Expenses, Budget, and any suggested Property Settlement.  A formal analysis might be generated to include various forward looking settlement scenarios by generating financial spreadsheets. The Mediator acting as the Financial Neutral does not have power to impose any solution or decision; the parties retain ultimate control over the outcome. The terms of the financial agreements are limited only by the interests and creativity of the parties and the neutrals.

For a more detailed presentation on what Family, Separation & Divorce Mediators are all about, please visit the Mediation Links to your right.  I suggest starting at  MACRO is a state government site and MPME promotes Mediator excellence.

I.  Facilitative Mediation

Facilitative Mediation is a process in which control of the outcome remains almost entirely in the hands of the parties and their legal counsel. The mediator restores communication and helps to create options for resolution by:

  • Ensuring that all relevant information is exchanged and heard by the parties, or confirms that there is a good reason why it isn’t being exchanged
  • Providing parties the ability to vent
  • Coaching negotiators on next moves
  • Helping parties invent settlement options
  • Transmitting offers and demands
  • Working to overcome potential impasses

II.  Evaluative Mediation

Evaluative Mediation occurs when the Mediator creates more structure and injects his or her own views or prediction of the trial outcome.  Evaluative Mediation is often applied to more difficult cases, not necessarily more complex cases, where the gap between the parties is large.  Perhaps the issues perhaps somewhat more complex or the stakes are high. The Mediator allows the parties to test the reality of their predicted outcomes by:

  • Working to thoroughly understand the parties’ factual and legal arguments
  • Providing feedback on the relative merits of claims and defenses
  • Offering his or her prediction of the outcome in court
  • Given certain circumstances, recommending settlement ranges 

Stephen Erickson, JD speaks to Mediation as Creating Separate Futures, while the adversarial process keeps focus on the Past.  The adversarial process, and as a system, prevents people from moving forward with the rest of their lives and the lives of their children.  Steve Erickson is the Co-Founder of the Erickson Mediation Institute in Minneapolis, MN.  He received the Bush Leadership Felowship (1979), and is the Co-Founder of The Academy of Family Mediators.  (Copyright ©  Reproduced here with permission.)

Attorneys as Mediators

In Conclusion:

We define Mediation as a process by which a skilled, neutral third-party (the Mediator) facilitates a conversation between the husband-wife in direct face discussion of issues standing between conflicting parties.  The Mediator facilitates an agreement or conciliation of their child-related, support and property disputes.  While in a mediation session, even if the wife and husband each have attorneys advising them as to their legal rights, the parties often negotiate without their attorneys present. Together the couple makes decisions about their children, personal finances, and property, coming to a realistic agreement acceptable to each of the parties after being reviewed by their respective attorneys.

The parties through consultation with their attorneys, mental health professionals, and financial advisors, work collaboratively to identify and evaluate facts, figures, and the issues surrounding their divorce.  The mediator, acting as a facilitator, assists the parties as they create a workable parenting plan, divide assets, and allocate expenses.  The mediator presents the couple with drafts of a Separation Agreement, Parenting Plan, Memorandum or Elements of Understanding, or Comprehensive Settlement Agreement. These draft agreements present the terms and conditions of the separation or divorce that are to be discussed with legal counsel.


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