Mediation in Divorce and Family Law                            

Index

• What is Mediation

• Types of Disputes

• Why Should I Mediate

• What is a Mediator

• How is Mediation Used

• How Do I Prepare for Mediation

• How is Mediation Conducted

WHAT IS MEDIATION

In many states, mediation  has gone from being an option to help resolve issues to a mandatory part of the court proceedings.  That is particularly true in cases that involve divorce or custody disputes.  

Mediation is called an alternative dispute resolution process.   In short it provides you with an alternative to Court to create your own agreements and craft your own orders without submitting those matters to the Judge.  This is often a preferred way to resolve disputes in a divorce. The alternative is to proceed to Court and allow a Judge, a complete stranger to you and your children, to hear a few short arguments and testimony and decide your fate.  Often such orders may seem like pounding round pegs into square holes with out understanding fully  the individual circumstances of the parties.  Clearly that is in no one's best interest and often leads to the long roller coaster ride through court with each party filing new motions year in and year out to change the rulings that the Judge has made. 

By contrast, mediation teaches the parties to communicate and to work through their issues productively.   In the process, the parties to work with a neutral expert to resolve their disputes in a way that works for them.  A mediator is also known as a qualified neutral.  The mediator may be a lawyer, a therapist, a religious leader or other qualified individual.  As part of the mediation process, the mediator will not provide either party with legal advice and, instead, will work with the parties on their communication skills to understand the other parties position.  

Often mediators will encourage the parties to incorporate into the proceedings other experts to help them in the decision making process,. This may involve the use of appraisers to value a home, accountants and investment counselors to address financial aspects,  or a parenting consultant to work through custody and parenting issues.  By using one neutral expert, the parties may save thousand of dollars that would be spent for each party to hire their own expert only to remain at an impasse with different results. 

WHAT TYPES OF DISPUTES CAN BE RESOLVED THRU MEDIATION?
 

Mediation can be a useful tool for almost any issue that you encounter in family court.  Even the most acrimonious divorces can benefit from mediation by helping the parties resolve some, if not all of their disputes, thereby simplifying the issues to be resolved through the court process. 

Mediation may resolve:

• disputes between divorcing parties including custody issues, spousal maintenance and property issues;

• paternity issues;

• restraining order issues.
   

WHY SHOULD I MEDIATE?

1. Mediation is available any time both parties are willing to engage in the process, even if they are already involved in a contested court case;  

2. Mediation is LESS EXPENSIVE than going to court with both parties to the dispute sharing the cost;  

3. A complete mediation process in most cases costs less than a single day in court;  

4. Mediation is efficient. Agreements are usually reached much faster than in the court process. The participants may meet for 2 to 5 sessions;  

5. Mediation is responsive to urgent needs such as support and custody arrangements. Temporary settlements can be made while the parties develop final agreements;  

6. Mediation is confidential and prevents public exposure of private matters;  

7. Mediation is voluntary. The parties are not forced to participate or submit to any unacceptable resolution.  

8. Mediation is effective because settlements based on mutual satisfaction and voluntary agreement will, more likely, be honored by the parties;  

9. Mediation is especially useful to parents facing separation or divorce, who need to maintain a positive working relationship.
    

WHAT IS THE ROLE OF THE MEDIATOR?

• A mediator stands in the middle of a conflict and reduces the tension in communication.

• A mediator filters out emotions, insult and similar problems;

• A mediator helps the parties work towards renewing communication without the personal issues that the individuals may have with each other.

• A mediator helps parties look towards the long run and realize when there is not a "long run."

• A mediator helps the parties focus on creating solutions that will last rather than ones that can be imposed.

• A mediator can also help people to remember not to worry about problems that will be over long before a solution is worked out.
   

* Mediation is an aid for resolving disputes, but does not replace the current formal systems.

HOW IS MEDIATION USED?

Mediation may occur between the parties alone or by having each party present with their own counsel.  This is often a choice of the parties after consulting with their respective attorneys.

Mediation provides an open format for the parties to openly relate their ideas and positions regarding the issues.  To encourage that result, in most states, discussions in mediation may not be used in Court and the mediator may never become a witness.

Different mediators will have different styles. However, in most instances, the mediation process will begin with an introductory session that explains to the parties how the mediation will proceed, sets out ground rules such as treating the other party with respect, and requires the parties to agree to freely exchange documentation and information related to their issues. 

Once the mediation begins, the parties may meet in a conference room with the mediator, much like a board room discussion.  This is called the Committee approach.  However, there is another option and in cases where the parties are unable to get along in the same room, the mediator may employ a caucus approach, providing each participant with their own room and shuttling back and forth between the two to relate ideas and proposals.  
 

HOW DO I PREPARE FOR MEDIATION

First, being organized is the best way to prepare for your mediation.  You should bring any and all documents relating to the issues to be mediated.  For example, if financial issues are being resolved, you should certainly come prepared with a list of your assets and liabilities as well as tax returns or pay stubs. 

Additionally,  if one of the issues is the value and disposition of the family home, you should come prepared with any tax statements or appraisals showing the value of the asset and any documents relating to the encumbrances against the asset.  The  same holds true for life insurance policies, 401k plans, retirement plans, stocks, bonds, health  insurance and its costs, debts and their balances, automobiles and their blue book values.  

Remember, the more thoroughly you prepare before the mediation session, the more likely your mediation is to be successful.

Second, you should come prepared to negotiate on the issues.  You should make a detailed list of the issues that will be discussed.  After you have made that list, you should make a note of the issues that have particular importance to you and those that are less important.  You should similarly highlight the issues that you feel will be the most important to your spouse and those that will be less important.

When the mediation begins, be prepared to be flexible. Come up with alternate proposals for each issue and use the issues of lesser importance to negotiate on the issues of greatest importance.  

HOW IS MEDIATION CONDUCTED

Each mediation session may occur between the parties alone or by having each party present with their own counsel.  This is often a choice of the parties after consulting with their respective attorneys.

It is important to remember that mediation provides an open format for the parties to openly relate their ideas and positions regarding the issues.  To encourage that result, in most states, discussions in mediation may not be used in Court and the mediator may never become a witness.

Different mediators will have different styles. However, in most instances, the mediation process will begin with an introductory session that explains to the parties how the mediation will proceed, sets out ground rules such as treating the other party with respect, and requires the parties to agree to freely exchange documentation and information related to their issues. 

Once the mediation begins, the parties may meet in a conference room with the mediator, much like a board room discussion.  This is called the Committee approach.  However, there is another option and in cases where the parties are unable to get along in the same room, the mediator may employ a caucus approach, providing each participant with their own room and shuttling back and forth between the two to relate ideas and proposals. 

A mediation may encompass one or many sessions.   Often breaks are necessary for the parties to acquire necessary documents regarding the value for their assets or to allow the parties to consult with a neutral expert such as an accountant or a real estate appraiser.

Mediation sessions continue so long as the parties are making progress and a resolution is possible.  Even when the parties are unable to resolve all of their issues, a partial resolution may simplify their court room proceedings.

Agreements reached during mediation are memorialized in a Memorandum of the mediation session by the mediator. generally, each party will have the opportunity to review that mediation Summary and sign off on its contents.  If all issues are resolved, the mediation summary is provided to the attorneys or to the Court to be drafted into an enforceable Court Order.

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