PROCEDURAL ASPECTS OF MEDIATION

Mediation is a complex area. My clients often find that it offers an excellent way to work out their divorce and family law issues without the pressure of a trial.

Family law is unique in many ways.  No matter what a court can do to terminate a marriage, it cannot end the family.  Family relationships continue until death.  That is another reason to work hard to end the legal relationship as amicably as possible.  For families, there will be happy occasions, (i.e. graduations, weddings, confirmations, etc.) and sad occasions, (i.e. funerals, illnesses, accidents, etc.) when you will be face to face with your ex.  Once you have gone to court and testified against your former spouse or partner it is very difficult to be in the same room with them.  It is much easier to put your feeling aside and be civil to your ex if you have not heard them testify against you.

If you are thinking about divorce or have a problem with another family law matter, call me and we can discuss how I can help you.

Q: What does a Mediator do?

 A Mediator will not make decisions for you.  A Mediator will listen to what you and your spouse or ex are saying, and ask questions to make sure that they understand each party’s position.  If one side needs more information, such as how the taxes will be affected by the settlement, the Mediator may suggest that the parties speak with an accountant and then return to the Mediator with a solution to the tax issue.  Mediators are problem solvers and will suggest different ways to achieve the result that will satisfy the parties.

Mediators will work on making sure that each party truly listens to the other party.  It is very common in a divorce, when emotions are high, that neither side will listen to the other.  After all, you are getting a divorce or have a serious family law issue and most likely poor communication between you and your spouse or ex has contributed to the conflict.  It is not always possible for the Mediator to get spouses or exes to agree – but if the Mediator can assist the parties in seeing each other’s perspective, that will go a long way in resolving the divorce amicably.   

Q: Is a Mediation confidential?

Yes! Another advantage of mediation is that it is a confidential process, unlike appearing in court. Court files are public records.

One of the fundamental principles of mediation is that it is a confidential process.  What happens in mediation stays in mediation.  It is routine for mediators to review the “Guidelines of Mediation” and have each party sign them prior to beginning the mediation session.  With the exception of child abuse or domestic violence, where mediators in most states have an obligation to report, everything said in mediation is confidential and neither party can testify to what the other party said during mediation.  Nor can the mediator be required to testify as to anything stated in mediation.  Most mediators will take notes during the session(s), but will destroy their notes at the conclusion of the session.

Q: What happens after the mediation? 

At the conclusion of a successful mediation, the mediator will write up summaries of the areas of agreement.  Although everyone is usually tired and ready to go home by that time of day, it is vital that the details of the mediation session be stated in writing and signed off by the parties and their attorneys.  If it is at all possible, my strong preference is to have a court reporter take down the agreement.

Usually the mediated agreement will not be as detailed or formal as a final settlement agreement.  If attorneys are present at the mediation session, usually one will “volunteer” to draft the formal agreement.   I routinely include language stating that if there is any dispute with the wording of the formal agreement, the mediator will serve as an arbitrator to resolve the language issue.  It is very discouraging to have a settlement “fall apart” over a minor matter.

Q: Do I have to be in the same room as my spouse/partner in mediation?

You do not have to be in a room with your spouse/partner.  However, if you know ahead of time that you prefer to be in a separate room during the mediation, it is a good idea to advise the mediator as early as possible to make sure that there will be a separate space available for you (and your attorney).

Q:  Can I bring my family, friends to mediation?

Yes.  However, if you will be having a joint session your friends and/or family will not be allowed to be in the room.  Some mediators may allow your friends and/or family to attend the joint session, if your spouse/partner does not object.  It is important to keep in mind that your friends/family will not be living with the decision and it is only yours to make.  However, if you will feel more comfortable with your family/friends then it is fine to have them.

Q: How long does mediation take?

It is impossible to predict how long a mediation session will last.  If you have childcare responsibilities it is advisable  to make arrangements for someone to pick up the children at school or daycare, If you know at the time the session begins that you will have to leave at a specific time, advise the mediator.  The mediator will be able to make a decision as to what time to conclude the session, and may set a date to resume.  However, keep in mind that any agreements that are not put in writing and signed by the parties will not be binding.  The mediator can write up a “partial settlement” and schedule future mediation session(s) to complete a settlement.

Q: If I own a business, can I bring my accountant to the mediation session to speak with the mediator?

Most mediators appreciative having financial experts at the mediation.  The accountant should be prepared to speak with your spouse/partner and their attorney to answer any questions regarding their work.  It is important to keep in mind that the accountant attending the mediation is not under oath, and will likely not have been qualified by the court as an expert.

Q: Can I bring my child’s therapist to the mediation when we will be deciding on a parenting agreement?

Yes.  You should take any experts that will be helpful to the mediator.  If you have any question as to whether your particular mediator has a different policy, the best advice is to ask permission as far in advance of your scheduled mediation as possible.      

Do you have legal questions? We’re here to help your family. Call us at 770-333-1620.

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