What is Mediation?
Mediation is a form of alternative dispute resolution where a neutral or impartial person (the mediator), facilitates settlement discussions between the parties. Because of the expense and the length of time, most divorces do not end with a final trial. Most divorces end in settlement before the final trial date. Mediation is partially the reason for this. In a divorce mediation, a neutral mediator that both parties agree to use will help both parties and their lawyers find the best settlement for them. The mediator's purpose is to focus the parties' attention on their needs and interests and not on their rights and positions. Mediators understand that when a party becomes entrenched in demanding their rights and positions, that party is not likely to negotiate and agree to a settlement. It is important to remember that the mediator has no authority to make a decision or impose settlements upon the parties.
Does Mediation Work?
So if you are like a number of our clients, you might find yourself skeptical about whether mediation actually could work to resolve your case. Imagine that two parties have tried to work out a case themselves to no avail and they even hired attorneys on each side and both of the attorneys do not appear to be able to settle the case. Really, how could a neutral third party that does not have any authority to render a decision actually resolve the dispute if it has failed before?
Well the surprising answer for some is - yes it can work - and it has worked many times in very difficult cases that have litigated for months and even years. So what is it about mediation that enables the parties to settle disputes that they were never able to settle themselves? First, it is the focus of the mediation session itself. Everyone is there and everyone is focused on trying to resolve their differences. Second, it is communication. Many times parties do not fully disclose their true desires and concerns to each other and these communication walls prevent the actual resolution of their matter. An impartial mediator and the confidentiality of each session allow the neutral mediator to find common ground and address concerns in a different and often more effective way. Third, it is immediate disclosure - addressing random concerns immediately and alleviate fears and concerns. Time and time mediation proves itself to be an effective resolution to a divorce by the results it achieves.
Another factor to consider is how mediation can reduce the costs of your divorce. Divorce lawyers typically bill by the hour, so the longer your case go on towards final trial, the more expensive it will be. Negotiating and settling through mediation does cost money for the mediator's time and your attorney's time, however it saves thousands in your case by eliminating the need for a final trial and all of the preparation, time, and witnesses that go into that.
Mediation Process: What Happens During Mediation?
How does mediation actually work? Every mediator and mediation is different so there is not an exact procedure for the process. That said, generally mediation starts with all parties in a room while the mediator explains the process and hears opening statements from both sides. In family law and divorce, however, the parties often do not start in the same room given the emotions involved. Regardless, generally speaking, the mediator will split the two parties into separate rooms and listen to each side, take offers back and forth, and addresses each parties concerns. Often the process involves some reality testing by the mediator - asking questions and forcing the parties to consider risks and rewards of proceeding forward with litigation, etc. The process generally continues until some or all of the issues in the case are addressed and resolved or until the parties reach an impasse and the session is ended. It is possible to settle on some issues and not others. For example, if you settle on child support, alimony, and the division of property, debts & assets but breakdown on child custody, you will still need to have a final trial on the issue of child custody assuming that issue doesn't settle before the final trial date.
Don't forget that just like final trial, a successful mediation requires preparation. Your divorce lawyer will probably meet with you before the mediation to go over strategy and what documents you may need to bring and become familiar with.
M&T Practice Pointer
Even where the mediation session fails to result in a final settlement, its effectiveness at narrowing down the issues (and gaps between the parties) often leads to the ultimate resolution of the case at some point soon after mediation.
Do I Need a Lawyer for Mediation?
Do you need an attorney to go to mediation? Technically the answer is no. That said, the mediator is an impartial party that cannot provide legal advice. Without attorneys in the process to help guide each party towards a resolution, identify the relevant (and irrelevant) issues, provide a framework for what issues need to be decided, and provide clients with projections for likely outcomes at trial regarding the various issues in the case, it would seem to be ineffective and potentially lead to very costly mistakes. The lawyer is your trusted advisor during the mediation process, it would be wise to be represented at mediation. Your lawyer can also help with recommending and selecting a mediator. Divorce lawyers typically have mediators that they work with regularly and your lawyer can help you select the right mediator and mediation style for your case.