The legislation creating Nevada’s family courts included NRS 3.225, providing that “The family court shall, wherever practicable and appropriate, encourage the resolution of disputes before the court through nonadversarial methods or other alternatives to traditional methods of resolution of disputes.” Mediation is one such method, and is widely considered to be one of the most successful.
“Mediation” can be defined as “A settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their disagreement.” In other words, a neutral attempts to help parties reach agreement.
How Does Mediation Work?
Typically, mediation is confidential; whatever is discussed or offered cannot be used by either party in litigation. There are different styles and methods of conducting mediation, including “facilitative” and “assertive/directive.” If you have questions as to how your mediator intends to proceed, you should ask if it is not clearly explained at the beginning of mediation.
The parties have great freedom to define their own rules and procedures, and typically can speak privately with the mediator, both of which are things that cannot be done in litigation with a judge. It should be made clear at the very beginning whether information shared with the mediator will or will not be shared with the other party, and the other rules to be followed in the mediation.
Mediation is distinguished from arbitration and litigation because the mediator does not make decisions, but can make suggestions and provide information and opinions based on the mediator’s knowledge and experience. However, a mediator cannot give “legal advice” to either side.
The goal of mediation is help parties reach a solution to their dispute – which should be distinguished from a “resolution” made by a judge. Typically, in mediation, neither side gets everything they might get in court; the other side has little incentive to settle for their “worst case scenario.” However, sometimes a skilled mediator can perceive, and suggest, a “win/win” scenario that serves the actual interests of both parties, by looking past their litigation positions to see what is actually important to each party.
Generally, mediation juggles 3 principles: the realistic range of probable results, the Zone of Possible Agreement, or “ZOPA,” and the financial and emotional costs to the parties and others (including their children, if any) incurred in settling versus completing litigation.
Cost and Administrative Matters
Parties usually split the cost of the mediator’s time, but any financial arrangement is acceptable if it is agreed. Arrangements should be agreed to by all sides prior to the mediation.
If complete (or partial) agreement is reached, it is typically memorialized in a written Memorandum of Understanding, or “MOU,” which serves as the basis for a formal stipulated court order. If mediation fails (usually called an “impasse”), the parties return to litigation.
Mr. Willick is a certified family law mediator who has completed the advanced training by the American Academy of Matrimonial Lawyers. The lawyers of Willick Law Group have participated in a great number of mediations as counsel for a party.
When acting as a neutral mediator, we always try to provide impartial assistance toward reaching a satisfactory resolution. When acting as counsel for a party who is mediating, we always try to find a way to satisfy our client’s actual interests within the bounds of what is possible. Knowing what to do – and not to do – in mediation is another valuable skill that a family law specialist should have.