What is a mediator?
A mediator is a person, often a lawyer, who has special training and experience to try to settle legal disputes by remaining a neutral party. The mediator has no power to force a settlement or decide an issue, but helps resolve a dispute by facilitating communication between the parties.
Do I need a lawyer before we go to mediation?
You do not necessarily need a lawyer before mediation, but I strongly advise that you have one for several reasons. First, as a mediator, I cannot give individual legal advice to either side, as that is a conflict of interest and beyond the role of a mediator. You should have your own attorney review your specific fact situation and give you advice regarding a fair settlement. Some divorces are very complex (especially those with highly-valued assets or with non-marital property), and it’s important to have your own attorney review the facts so you have an idea what may happen in court. Second, as I mediator, I do not prepare the final documentation for divorces (e.g. the Marital Termination Agreement) because doing so, without lawyers involved, raises conflicts of interest. So, at least one of you will need a lawyer to finalize the divorce, unless you want to do it try to do it yourself (something I do not recommend). Third, in my experience, a case is much more likely to settle if a lawyer is actively advising you about your case from the beginning. In other words, you may spend less time and money if you start with a lawyer, instead of trying mediation without a lawyer and having it fail.
Does my lawyer have to attend the mediation?
No, but I recommend it. When lawyers are not present at a mediation a party may need legal advice before making a decision. Without the lawyer present, mediations are less likely to result in a settlement. Further, you are more likely to get helpful legal advice when your lawyer is present at the mediation. If you do not intend to have your lawyer present at a mediation, you need to go over all settlement issues with your lawyer prior to the mediation, including the information and documents you should bring to the mediation, so that we don’t waste time—and your money—at the mediation itself. Further, you should try to have your lawyer available by phone, so any important questions can be answered during the mediation session. Good lawyers can be helpful at a mediation, as they are trained to keep their clients focused on the issues and not let emotions override good decision-making. Except in the most simple of cases, a settlement is more likely with lawyers present.
What happens at the mediation?
When lawyers are involved, normally each spouse is in a separate room, along with his or her lawyer. After a brief introduction to the process and the signing of a mediation agreement, the mediator goes back and forth between the rooms to discuss the issues and try to reach agreement on each one of them. When lawyers are not at a mediation, sometimes the spouses meet together with the mediator, and sometimes the mediation is in separate rooms, depending on the wishes of the parties. Even when the parties start out in the same room, there are times when the mediator may want to meet separately with each party to candidly discuss certain issues, some of which may remain confidential. If an agreement is reached, the mediator will either write a letter summarizing the agreement, or prepare a short agreement that the parties will sign before they leave the mediation.
What kind of family law disputes are appropriate for mediation?
Most kinds of disputes are proper for mediation, unless there are issues of abuse. Mediation is particularly effective when addressing parenting time issues, as parents can usually create a more useful parenting time schedule than a judge hearing the issues for only a few hours.
What are the costs? Mediators usually charge by the hour for all time incurred, both before, during and after mediation. Some disputes can be settled in a couple hours, and some take a whole day – or even longer, if the issues are complex or if there is strong animosity. How many cases settle in mediation? About 90% of mediations settle most, or all, of the issues present. In some cases, only a portion of the issues are resolved (e.g. custody and parenting time) and other issues go to court (e.g. property division). If both parties are willing to be reasonable and compromise, and to take the time to resolve the issues, then mediation most frequently ends in settlement.
Is mediation binding?
If no agreement is reached at mediation, then nothing is binding, and the court cannot hear about any offers you may have made during the mediation. If you reach an agreement on some or all of the issues, you can: (a) have the mediator draft an agreement at the end of the mediation, for the parties to sign; (b) have the mediator prepare a letter after the mediation, summarizing the agreement; or (c) let the parties tell their attorneys what the agreement is, and let the attorneys prepare the final documentation. If nothing is signed by the parties, then the agreements reached may not be binding. If an agreement is signed by both parties, and someone changes his or her mind and refuses to comply with the agreement, then it will be up to the judge to decide if the agreement is binding, just like any other contract. Decisions about division of assets and debts are more likely to be binding than decisions about the children, which can always be reviewed by a judge. In any event, you should go to mediation with the intent to reach a binding agreement, and to comply with that agreement after the mediation. Otherwise, you are only wasting your time and money.
What if my case does not settle in mediation?
If some or all of the issues in your case do not settle, then you can go to trial in front of a judge, who will decide the issues for you. The judge is not allowed to hear about any offers you may have made to the other side during the mediation process. Further, the mediator is not allowed to testify about what happened in mediation.
Are there alternatives to mediation?
Yes, there are. Your lawyers can try to settle the case by negotiating between them. If you are on good terms, you can also try to settle the issues directly with your spouse, getting advice from your individual lawyers as necessary. Also, if you are having trouble splitting up your personal property with your spouse, and you don't want to pay lawyers or mediators to argue about the property, you can use an online tool developed by Paul Jacobsen to cost-effectively divide your property. Take a look at CleanSplit.com.