Mediation – an Inside Look
January 11, 2019

mediation lawWhat is mediation?

Mediation is a voluntary, alternative dispute resolution process in which a neutral third party is appointed to assist the parties in reaching a mutually agreeable settlement.  Mediation can be used in the following family law cases: divorce, custody, and support, including spousal support, alimony pendente lite, alimony and child support.  In family law cases, mediators are typically either experienced family law attorneys or mental health professionals, particularly when custody is at issue.

What is the mediation process?

Once a mediator has been agreed upon by the parties, including how the mediator will be paid, the mediator’s preferences and practices will dictate the next step.  This may include a meeting or conference call with counsel, only, to gather background information, or the mediator may request Mediation Statements be submitted prior to the first session to orient the mediator to the facts and issues.

Do I still need an attorney if I mediate my case?

Mediators are neutral and are not permitted to provide legal advice.  For this reason, alone, both parties should approach mediation with counsel.  Some mediators mandate that counsel be present at all mediation sessions.  Some mediators prefer that counsel attend only the first session and then be available for phone calls from their clients to provide legal advice during subsequent mediation sessions, with the thought that attorneys can create hurdles to settlement and escalate tensions between the parties.  This will greatly depend upon the preferences and practices of the mediator; however, input from parties’ counsel is important to determine what might work best for the parties and their dynamic.

What occurs at mediation sessions?

The mediator can meet jointly with the parties and counsel, or separate the parties.  If the parties are placed in different rooms, the mediator will shuttle between rooms, referred to as caucusing.  The private meetings provide an opportunity for each side to learn the strengths and weaknesses of their case, as well as discuss what the court outcome may be if the matter does not settle at mediation.  An integral part of mediation, whether the session is joint or the mediator shuttles between two rooms, is for negotiations to occur.

How long does the mediation process take?

Several mediation sessions may be necessary.  It depends upon what information has been provided, if further information and documentation are needed for parties to make decisions, and if additional sessions are necessary to discuss other options to settle.  For example, one mediation session may be devoted to discussing a holiday and summer custody schedule for the children, while a separate session discusses the day-to-day custody schedule.  One mediation session may be necessary to determine what other financial statements are needed to supply the parties with all the facts to brainstorm various options to settle the distribution of the marital estate.  There are no set number of sessions needed, and no rule of thumb.  The mediation process is individually tailored to the needs of the parties and the issues to negotiate.

What if the other party won’t agree to mediation?

Unfortunately, since mediation is a voluntary process, if one party refuses to entertain mediation as an option, they cannot be forced to do so.  Mediation is successful when both parties present in good faith, and come to the table prepared to negotiate.  Good faith encompasses realizing that compromise is essential to a successful mediation process.

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