Mediation is an extremely advantageous way to settle a dispute. This alternative dispute resolution or ADR process is quicker, procedurally flexible and a more cost-efficient way of handling a separation and divorce.
In addition, the parties are in the best position to reach a resolution as they know all the intimate facts of their separation. Most people would agree the individuals involved should reach a negotiated settlement, not the courts or judges, who must follow procedural rules and are constrained by legal principles.
That being said, both parties must enter mediation with good faith, meaning that the parties have the sincere intention of trying to find a resolution in the dispute.
Black’s Law Dictionary defines good faith as “a state of mind consisting in (1) honesty in belief or purpose; (2) faithfulness to one’s duty or obligation; (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.”
Negotiating in good faith requires a party to act in a way that would be likely to end in a settlement of the dispute or disputes. This can be demonstrated in a number of ways including communicating with the mediator and other party within a reasonable amount of time, completing financial disclosure, being transparent during negotiations, demonstrating a willingness to take proposals seriously and making reasonable counter-proposals, make good on their offers, and complying with previous settlements reached in mediation. Those are a just a few of the ways good faith can be demonstrated in mediation, although this is not an all-encompassing list.
It is important to remember that all parties have an ethical obligation to negotiate in good faith. This, of course, does not always happen, and when parties enter mediation in bad faith, many individuals find themselves heading to court, which diminishes what mediation is attempting to do; settle disputes in a less contentious manner than litigation.
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