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What significantly distinguishes the National Conflict Resolution Center’s (NCRC) private divorce mediation from the traditional court process or from court ordered custody mediation? Confidentiality. Anything that is discussed in divorce mediation sessions is by law, confidential and not admissible by one party against another if they should end up going to court. Such confidentiality allows the couple to discuss different options without the fear that things they say can be used against them by the other person.

Under the same law, however, custody mediation conducted by Family Court Services (FCS) counselors and other therapist/mediators, is specifically excluded from the confidentiality requirements. This allows them to make reports and recommendations to the court if the parties don’t reach an agreement on their own. The effect is that what someone says can be used against them by the “mediator.”

Unfortunately, this gives some participants in court ordered “mediation” a bad feeling about mediation in general. They see it as something that can hurt them. In contrast, with confidential mediation as provided by NCRC, if the parties don’t reach an agreement, the mediators will not make either reports or recommendations to the court.

The goal of confidential mediation is to help the couple reach their own, mutually acceptable agreements that will fit their needs and interests and can be more creative than a court would order.

Does anyone have any comments about non-confidential mediation and how it affected them? Would you try confidential mediation if you had it to do over again?

In response to Valerie: You are right that the outcomes in court are not always what the litigants expect or what they think is “fair.” There are many variables affecting outcomes in court that go beyond the law itself, i.e. the quality of one’s attorney, who is on a jury in civil court, prohibitive costs that limit what the parties can do, someone else’s definition of “fair,” etc.

In mediation the parties have control of the outcome. Whether we are talking about divorce mediation or personal injury, real estate, homeowner association, employment/workplace, probate, business/commercial, or other mediation, the parties, with the help of a mediator, can work together to find something that meets their respective needs (which only they really know), something that is mutually acceptable, and something that is cost effective. Mediation gives disputing parties the opportunity to work it out for themselves in a way that saves time and eliminates the risk of an uncertain outcome in court.

NCRC has been doing mediation for 25 years and we have worked in all of these areas. We see the benefits of mediation so clearly, and if the parties can’t resolve their issues in mediation, they can always go to court.

— ROBIN SEIGLE

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