Mediation, What It Is And What It Isn’t – Part 1
I hear the word ‘mediation’ tossed around often, and too often I suspect the person doing the talking doesn’t actually fully understand the definition. Which is okay, this stuff can feel confusing. Here’s my attempt to clear it up by stating what mediation is and what it isn’t.
- A form of conflict resolution where both parties agree to meet (accompanied by his or her respective counsel) with a mutually selected, trained, impartial person; the mediator assists both parties to define issues and eliminate obstacles to reach an agreed upon settlement.
- Confidential—which court is decidedly NOT—no offers, no nothing from mediation is admissible in court. Should the parties fail to reach agreement, the mediator is excluded from testifying. This encourages open communication during the mediation without fear of being held to an offer floated during negotiation. The idea is to put proposals on the table knowing you are not stuck should the settlement break down.
- Necessary before a final trial, in most cases. While every judge is different—each has his or her particular court rules and policies—every judge highly encourages mediation before moving to trial and the majority require it. Except in certain unique situations where physical or sexual abuse has occurred, in cases where custody is an issue, mediation is just going to happen before a trial, no question.
In most cases, going to mediation is not a question of “if”, but a question of “when.” It is essential that you discuss with your attorney the timing of when to go to mediation as going to mediation before you have the information (i.e. financial disclosure and information from the other side) you need to be able to make an informed decision about settlement can turn mediation into an expensive disappointment.
- Long, difficult, and often emotional and painful for both spouses. As they say with any good negotiation, neither party walks away having “won”—compromise rules. Each may have prevailed on one issue, but has given more than they wanted on another.
- Generally highly successful. From what I’ve seen, out of every 10 mediations, 8 or 9 settle. 85-95% rate makes mediation a good option for most couples. A judge during his hour or two on your case simply won’t see or hear the details that a mediator will.
Mediation Is Not:
- A substitution for trial, judge, or jury—unless, at the end of the day, each party agrees and signs a settlement, the mediation is considered a no go. Nothing that is said during the day is binding should no overall agreement occur.
- An arbitration; an arbitrator makes a ruling that is binding. A mediator does not decide what or who is fair or right, nor does a mediator assess blame or render an opinion that is binding on the parties.
- A forum to “present your case”—not a here is my side, now here’s yours. The two parties and his or her attorney are in different rooms and the mediator goes between, often bringing potential compromises to the table for discussion. This back and forth continues throughout the day; you are not required to sit in a room with your ex and “defend” yourself.
- The cheapest settlement negotiation (each spouse pays his or her lawyer per hour and half of the mediator fee, totaling somewhere around $3,000 to $5,000 for the day for each party). And while it might be more expensive than if a couple were to settle on their own outside of court or mediation, overall it often costs less in the end as mediation can give a couple an impetus to settle. Oftentimes, the cost of mediation in-and-of-itself can cause both sides to move on an issue that before mediation was a stalemate.
- Usually thrown off track because both parties can’t agree on a mediator. Your attorney will know the best mediator for your case, and most lawyers are able to agree to a good, qualified mediator for their clients. If all else fails, the court can give you a mediator if you can’t agree.
So while mediation may not be particularly fun, it can be highly useful. On the road to divorce, it is often a stop that fast forwards a couple to moving on with their lives without the uncertainty of what may or may not be heard on their day in court. Mediation offers some control to what can often feel like a powerless process. To come to a settlement agreement without going to court is generally a win for everyone.
Now that you know what mediation is and is not, stay tuned for BLOG TWO on mediation, which will cover the do’s and don’ts!
About the Author
Jonathan James is an associate attorney at Hance Law Group who exclusively handles family law matters, and has worked on cases ranging from paternity & custody disputes to complex property divorces. Mr. James is very comfortable in the courtroom, and makes a personal investment in his clients’ cases in order to achieve the best outcome possible.