Are you looking for divorce mediation or child custody mediation? Have questions about mediation or other forms of alternative dispute resolution (“ADR”)? We have listed commonly asked questions and answers below.
What is mediation?
Mediation is a confidential discussion of the issues that need to be resolved in a divorce or custody situation. The divorce mediator, or child custody mediator, facilitates the different possibilities for resolving those issues. The mediator doesn’t have any decision making authority, so the process isn’t inherently risky; you can only serve to benefit if you can resolve your issues out of court.
Why should I try mediation? We can’t agree on anything.
There are three reasons we often give our clients for why they should give mediation a try.
1. You just might settle the case. The parties involved have the most information about their situation, and therefore are in the best position to craft a creative solution specifically tailored to them. Judges, on the other hand, are bound by case law, statutes, and rules and must provide a solution for the parties that fits within this framework.
2. The court is going to ask you what Alternative Dispute Resolution you’ve done before coming to court. In recent years the court has come to require exhausting the possibility of settling the case out of court. The court prefers that people devise their own resolutions, and come to court only as a last resort.
3. Even if we don’t settle the case, it’s great preparation and knowledge for purposes of going into court. Even though it’s confidential, and therefore an offer the other party made cannot be used in court against them, if you discuss the case in mediation and reach an impass, it does give us a better idea how best to present the dispute to the court.
Mediation is often less expensive than litigation, and most importantly, it leaves you in control of the outcome, rather than a judge.
Divorce mediation or custody mediation is a confidential process. What does it mean for the process to be confidential?
Any offers made during mediation, or any possibilities that are discussed, cannot be disclosed to a court. This creates a setting where the parties can more freely discuss and explore how far from their “stance” they might be willing to go. A trial, or any type of litigation is very costly, so money saved by resolving issues in mediation, can often become part of a solution. It doesn’t mean that you can take something like a bank account balance or a mental health condition, mention it in mediation, and therefore make it non-disclosable. Facts, such as these, mentioned in mediation, can indeed become part of a court case if the situation is not resolved in mediation. It is the discussions and offers that remain confidential.
Do we have to go to mediation as part of our case?
As mentioned above, the court is going to ask what Alternative Dispute Resolution you have used prior to coming to court. In most cases, some type of ADR is required, but there are exceptions, such as some cases involving domestic violence. In recent years many mediators have developed better protocols for accommodating those circumstances, and so some cases involving domestic violence do proceed with mediation today. A victim of domestic violence should seek the advice of counsel regarding any ADR process they are considering.
Mediation is just one form of ADR. ADR includes early neutral evaluation, moderated settlement conferences, and any other processes to which the parties agree.
Many divorce decrees include a provision that requires parties to mediate post-divorce disputes prior to returning to Court.
Do we have to attend mediation with an attorney?
The short answer is “no.” There may be instances in which a Judge requires parties who are represented by an attorney to attend mediation or another ADR process with those attorneys. There are also mediators who will not allow one party to have an attorney present unless the other party also has an attorney present. Generally, however, parties will be able to make this decision on their own, as long as they both agree.
What makes a good mediator?
The best mediators have both a high level of experience and knowledge about divorce and family law and a calm and diplomatic approach to the situation and towards each of the parties. Mediators who have spent many years as attorneys, representing clients in mediations and litigations, have had the opportunity to see many situations and many types of resolutions. As mediators, they are often able to help clients think outside the box and craft creative solutions. They can also offer perspective on how similar cases have been perceived by the courts. But the mediators approach in presenting this information is also critical. Mediators need to be able to rise above the emotion and conflict that is often present, and help the parties see what is and isn’t relevant to resolving their case.
How is mediation paid for?
Mediation is paid by the hour, and the parties generally split the fees equally, or pay the fee out of a joint account. The fees are paid in full either in advance or on the day of mediation. If the parties don’t finalize an agreement during the mediation, the fees paid may include time for the mediator to prepare a written summary, which is provided to both parties.
If we want to mediate what would be our next step?
If both parties are in agreement that you want to mediate, you could take a look at our Agreement to Mediate, and any party could call to schedule an appointment. We offer a flat fee arrangement, at a discount from our typical hourly rate, for a mediation session that includes up to four hours of mediation and written summary, if paid in full in advance. We also offer hourly mediation rates, that are to be paid in full on the day of mediation.