Nuts and Bolts of Divorce Mediation

Nuts and Bolts of Divorce Mediation

  1. Mediation Conference

Mediation is an informal and confidential settlement conference between the parties and the attorneys outside the presence of the judge. Since mediation is confidential, the parties cannot use things that were said during mediation in court before the Judge. This encourages open and honest communication between the parties in hopes of reaching a mutually agreeable resolution.

  1. The Mediator

Mediation is conducted before a certified family law mediator, who is usually a lawyer that specializes in the areas of family law. Unless the mediator is appointed by the Judge, the mediator is selected by agreement of the attorneys. It is the mediator’s role to act as a facilitator of the mediation process. The mediator is a neutral third party and does not pick sides. It is the job of the mediator to listen to the parties’ needs and desires and ultimately get you to compromise and reach a common ground on all issues. The mediator also assists with problem solving and proposes various settlement alternatives. The mediator does not give you legal advice. That is the job of your divorce attorney.

  1. Your Divorce Attorney

Your divorce attorney is present at mediation to give you legal advice, advocate on your behalf, and make sure you get the settlement you deserve. At the start of mediation, your attorney will assist the mediator in identifying the issues of the case. In some cases, the attorney will send the mediator a confidential summary of the relevant facts and issues of the case several days before mediation.

  1. You Do Not Sit in the Same Room as Your Spouse

The parties are not seated in the same room during mediation. You will be seated in one room with your divorce attorney, and your spouse will be in another room with his or her divorce attorney. The mediator acts as the “go-between” and brings settlement offers back and forth between the parties until an agreement reached or the parties impasse.

  1. Cost of Mediation

There is a fee associated with mediation that is separate and apart from the fees you pay your divorce attorney. The fee goes directly to the mediator and is part of the costs of your divorce case. Most mediators require a deposit several weeks in advance of mediation.

  1. Mediation Settlement Agreement

If both parties reach an agreement on all issues, the mediator will reduce the agreement to writing. You and your attorney will have the opportunity to carefully review the agreement for accuracy and completeness before you sign it before a notary. Once the agreement is signed by all parties, the mediator will file the mediation agreement with the Judge. However, you will not be divorced until the Judge reviews the agreement and enters a Final Judgment on your case.  This usually occurs a few weeks after the mediation conference, depending on the Judge and whether all other required documents have been submitted to the court.

  1. Any Settlement is Voluntary

The mediator or your attorney cannot force you to enter into an agreement. The choice to settle is solely yours. Once the agreement is made, you are bound by its terms and there are no “do-overs.” In other words, there is no buyer’s remorse after mediation. That is why it is very important you have an experienced divorce attorney to represent your interest at mediation. You do not want to end up with a bad deal. If the parties cannot reach an agreement, the mediator will declare an impasse and file a letter with the court stating the parties were unable to reach an agreement. Once an impasse is reached, your divorce attorney will set a final hearing before the judge and get ready for trial.

 

Therese Felth McKenzie

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