Mediation and arbitration are both forms of alternative dispute resolution. Many states now require divorcing couples to use some form of alternative dispute resolution prior to trial.
During the divorce process, you and your spouse along with your family law attorneys will meet with the mediator. A mediator is a neutral third party who is usually a retired judge or an attorney. The mediator helps the parties resolve their case. If you are able to resolve your case, you may sign a mediated agreement or mediated settlement agreement.
The purpose of mediation is to work through the issues necessary for the resolution of your divorce so you can amicably and cost-effectively end your marriage.
Collaborative divorce is a different process that couples sometimes agree to use prior to filing a lawsuit.
What Issues Can Mediation Process Resolve?
In general, divorcing couples can resolve the following issues in their divorce:
- Distribution of Property (Assets/Liabilities): This includes your houses, cars, loans, credit cards, etc.
- Child Custody and Parenting Time: This is to determine where your children will live and how you will parent your children after the divorce.
- Child Support/Alimony/Spousal Support/Maintenance.
- Retirement: Division of pensions and 401K plans can be negotiated.
- Taxes: Who will pay the current years taxes and any tax burdens.
Most mediators are highly trained professionals. Many mediators have years of family law experience as divorce attorneys or even as a judge. Many states require mediators to complete an intensive mediation training course lasting up to 40 hours.
They typically charge by the hour. The mediator’s rate may vary based on experience and locale. Typically, parties will split the cost of the mediator’s fees. In some instances, it may be more appropriate for one party or the other to pay all or more than half of the mediator’s fee.
It’s important to choose a mediator that is experienced and knowledgable about the local laws. You will also want to know the mediators’ style and how the mediator interacts with parties.
If you have divorce lawyers, your divorce lawyers will usually negotiate between themselves to choose a mediator they believe is best suited to mediate your case. Some court systems have appointed mediators who are assigned to cases by the court in cases where the parties are not represented.
The Mediation Process
Preparing for Mediation
In order to be successful in mediating your case, you and your divorce attorney will spend time preparing.
If your case involves financial issues such as support or the division of property, your attorney will want to exchange relevant documents with the opposing side.
Once all of the documents have been gathered, your lawyer will prepare a spreadsheet to calculate the best way to divide your debts and assets. In complex financial cases, experts may be used to determine the value of a business, retirement account, pension or other properties. Your attorney may also prepare a financial affidavit of your expenses and income for purposes of calculating alimony and child support.
Prior to mediation, you should meet with your family law attorney to determine the best strategy for achieving your goals in mediation. During the meeting, you will discuss the parenting schedule or custody arrangement you think will best suit your children and your families needs, determine the amount of support you are likely to receive, and decide how best to negotiate for the property most important to you.
The process works best when everyone negotiates in good faith. Parties find that mediation is often preferable to litigating their divorce in court.
The Mediation Day
After spending several weeks or months preparing, the day will finally arrive when you attend the mediation. You may feel nervous or anxious about the day. This is normal. Knowing that you have prepared should help relieve some of the anxiety. Bring a book or something to work on during the mediation when there are slow times. It also helps to bring a snack as mediations can run long.
Most mediators bring the parties and the attorneys into a conference room together for a brief meeting at the start of the day. The mediator will open the joint session by introducing himself and explaining the rules of mediation.
In most states, what you say in mediation cannot be used in court later if the case doesn’t settle. What you tell the mediator is usually confidential. If you have questions about what can be used in court or what is confidential you should ask the mediator or your attorney.
After the mediator explains the process and establishes any hard stop times that the parties have, the attorneys may have an opportunity to do a brief opening. This is a time for the attorneys to give the mediator a synopsis of the case. Many experienced attorneys skip this verbal opening in favor of preparing a summary sheet for the mediator.
Once the opening session is concluded, the mediator will have you and your attorney go to one conference room while your spouse and attorney go to a different conference room. This begins the process of negotiating a settlement. The mediator may have asked the attorneys if they have a preference as to which party the mediator meets with first or the mediator may have a preference for who to meet with to start the negotiation.
If the mediator starts with you, you will make the first offer to resolve your case. The offer may include terms for custody, support, alimony, property division, and divorce. Once the offer is crafted, the mediator will take the offer to the other side and discuss it with them. It is unlikely they will accept your first offer or if they make the first offer that you will accept it. It is much more likely that they will make modifications to the offer made and send a revised proposal back with the mediator to discuss with you.
The mediator at different times may try to get you to see things from the opposing side’s perspective. He may also push you to consider what could happen if your case went to court and a judge decided your case. You can always request to talk to your attorney privately to get legal advice without the mediator in the room.
Settling Your Case or Not
Neither you or your spouse are required to settle your case. While many couples do reach an agreement in mediation, not everyone does or should. If you do not reach an agreement, the mediator will declare an impasse. If your case is already in litigation, the mediator will report to the court that the case was not settled. The court will not know anything about what you discussed or why your case didn’t settle. The mediator may suggest that you come back for a second day of mediation or that you continue negotiating with your attorneys.
If you are one of the lucky majority who resolves your case, the mediator may suggest you memorialize your agreement in writing. This document is often called a mediated settlement agreement or a mediated agreement. Depending on your state, the attorney may suggest putting certain parts of your settlement in a consent order that is filed with the court. Prior to signing, you should carefully review the agreement before signing. Once signed it is official and not easily set aside. There are benefits and risks associated with signing on the same day. If you or your attorney are tired, mistakes could be made in drafting the settlement documents. On the other hand, if you don’t sign before you leave the mediators office one of the parties may back out of the settlement and never sign.
- It can result in more favorable terms as compared to the terms received from a judge.
- It does away with the need for litigation that can be expensive and long drawn out.