If you’ve made the decision to divorce, chances are good that you want to get the process over with as quickly as possible and avoid the expense of litigation, so you can go on with your life. Mediation is a good way to resolve things without the stress and expense of a trial.
It is become increasingly common for the courts to order the parties to mediate the day of trial, prior to hearing the case. You can also mediate at any time.
I always advise my clients to consider mediation, because when both sides can work out their differences that way, it’s usually better for all concerned.
Below are some common questions I hear about mediation.
Q: What is Mediation?
Mediation is an informal process to settle a dispute. In many cases, mediation is a voluntary practice. It is important to keep in mind that the mediator (a neutral third party) does not have the power to decide the case, and that to settle a case, the other party must agree to the proposed resolution. However, many judges will not agree to hear a case until the parties have been through the mediation process.
One of the foundations of mediation is the belief that if the parties are able to confront each other to state what is important to them, clear up misunderstandings and they will be able to reach a resolution. The “resolution” most likely will not be one that either party gets everything they want. However, each party will get some of what they want. In an ideal situation, each party will get those items that they feel are their top priority. At the conclusion of a successful mediation, the Mediator will write up the key points of agreement.
Q: Can we Mediate my divorce, before the divorce is filed?
Absolutely. Since mediation is a private non-adversarial process, it is possible and preferable in many situation, to mediate prior to filing for the divorce. It is far more likely that the divorce will be amicable if the parties settle their differences prior to filing the divorce. The Separation Agreement can be filed with the Complaint for Divorce. The cost of mediating a case is usually far less than the cost of a case in litigation, which can take many months and cost thousands of dollars.
Q: What happens at Mediation?
After the Mediator reviews the “rules” of the mediation, and each party signs that they agree to abide by the rules, the Mediator will ask one party, usually the Plaintiff, to make their opening statement first. The opening statement should tell the facts of the case, i.e. date of marriage, children etc.
Once the facts are established, then the issues that they are asking the mediator to decide should be stated, and their suggestion for resolution. My preference is to resolve the less contentious issues first and let the parties gain momentum to work on the disputed items.
After that, the other party will have the opportunity to give their opening statement, and also add where there is a difference of opinion.
If the parties are in the same room at this point, the Mediator will usually ask for a “caucus” to speak with one side or the other alone. A caucus is a private session. The caucus is a safe place in which the Mediator can ask questions to the party, without the opposing party hearing their remarks. You can tell the Mediator that you do not want them to repeat certain things that you said to them in the caucus to the other side. By caucusing, the Mediators can brainstorm with each side, to help find solutions to resolve the divorce.
The order of who gets to caucus first varies. Some Mediators will routinely caucus first with the Plaintiff. Other mediators may caucus first with the party having the most information. Different mediators will caucus with the party that seems the most anxious about the process. If a party is represented by an attorney, and the attorney is present, it is customary for the attorney to make the opening statement. The Mediator may then ask the party whom the attorney is representing if they have anything to add. The mediator could also flip a coin to decide who goes first.
In many cases the parties are concerned about confidentiality. Although mediation is a confidential process, there are situations, i.e. with a privately owned business, where one party requests a confidentiality agreement to be signed by the other side. As long as the terms are reasonable in the confidentiality agreement, that should not be a problem.
Q: What are the typical “rules” of Mediation?
Although mediation rules vary not only from state to state and court to court, some mediators have their own special rules. However, most mediators will ask that the parties not interrupt each other. I strongly advise my client to listen carefully and respectfully to what the other party has to say. It is important to pay attention and look engaged. This is not the time for nasty facial expressions. It is common practice for one of the rules to address how the mediator will be paid. Some counties will provide mediators for a specified number of hours and after that time is up, then the parties will need to decide how the mediator will be paid for the additional time.
Q: What happens if the parties do not reach an agreement during mediation?
The overwhelming majority of cases settle at mediation. However, if the parties are not able to resolve their differences during the first (second or third) mediation session, it does not mean that the case cannot be resolved without going to court. Reaching an agreement is very much a matter of timing. Sometimes, one party is anxious to put the dispute behind them, and the other person is not ready to end things.
If the case is not resolved during the first session, the parties can agree to schedule another session with the same or a different mediator. It is also possible that the parties either with their attorneys or themselves will reach an agreement after the mediation session has ended, thereby avoiding the uncertainty and expense of having a judge make the decision.
If there is no agreement during the mediation session, it is important to conclude negotiations on a cordial note, so that the door is open to continue negotiating on another day.
Do you have legal questions? We’re here to help your family. Call us at 770-333-1620.