In court mediation, it’s a term many people have heard, but what is it actually? In court mediation is a distinctly different animal from what I would call standard mediation, and it is worth taking a few moments here to explain what I mean by this.
There are 4 basic principles of mediation that are sacrosanct. These are that mediation is:
- Impartial (or neutral as some might call it)
- Clients have the right of self determination (This means that the mediator will not make a ruling as to what is right or fair, nor will the mediator tell you what solution you have to apply to your situation
- Confidential (Nothing said in mediation will be disclosed outside of the process unless all parties agree to waive this right)
- Voluntary (Nobody who attends mediation can be forced to attend.
On the face of it, the practice of in court mediation seems to contradict these fundamental tenants. In particular, the principles of confidentiality and mediation being voluntary seem to fly right out of the window. If a couple shows up at court expecting to sit before a judge or magistrate but then finds themselves sitting in a side room with a mediation. “Confidential my foot!” cry many in this situation, “everybody in the building knows I’m in here!!!”.
The truth of it however is somewhat different. Let’s look first at the idea of it being voluntary. If you show up at court and the clerk tells you that you are to use the in court mediation service, you don’t have to. You can simply say, “No, I want to be seen by the judge/magistrate”, and that’s that. Of course the judge or magistrate may ask you why you’ve taken this decision and you should probably have a decent reason already worked out in your head, but at the end of the day the choice is yours.
In regards to confidentiality, this doesn’t mean nobody knowing you’ve used mediation. If you’re worried about people in the building knowing you’re having marital problems… Well, the very fact that you’ve arrived at the family court that morning means that this secret has already been blown. Confidentiality for in court mediation means that the content of your discussions with the mediator are private between you and your ex, apart from the outcome of those discussions. Yes, that outcome will be heard by the judge, but then again, this is only to avoid having the judge force his/her own outcome upon you. And lets face it, wouldn’t you rather ultimately retain control of that outcome anyway?
As to impartiality, and the idea that you have the right to self-determination, in court mediation actually enforces these ideas to their fullest. No mediator is going to try to force his/her thoughts on you knowing that in only a few moments they are going to sit in front of a judge and explain things to him! As to self-determination, this is the whole point of in court mediation. Letting you decide, even though this decision has gone right to the wire, and not forcing someone else to determine your future for you.