Mediation is an opportunity for you and your spouse to solve your divorce issues cooperatively, productively, and cost-effectively.
Mediation is a voluntary process. A neutral, third-party mediator, of your choice, will help you and your spouse discuss and resolve your separation and divorce issues. The goal is to reach a settlement by agreement.
Mediation is non-binding. This means that if you and your spouse cannot reach an agreement, no one is going to impose one on you. You and your spouse maintain control over the solutions that affect your family. Mediation can also be used as an alternative to Court at any point in the separation and divorce process.
Mediation often creates the possibility to have conversations you cannot otherwise have. You may also come up with solutions you had not thought about before.
Mediation is different from arbitration.
Mediation and arbitration are both private, voluntary processes, outside of Court, but otherwise, they are very different. Arbitration is binding and mediation is non-binding. It is a facilitated discussion between parties in an effort to reach an agreement. In arbitration, spouses present their cases and the arbitrator makes a decision. Mediators try to help parties reach an agreement and arbitrators decide legal issues, based on the law.
There are many benefits to mediation.
Mediation can settle the majority of disputes between separated spouses, with significant benefit to the parties. Some benefits include:
You and our spouse have control over your agreement
In mediation, you and your spouse decide your settlement, instead of a third-party deciding it for you. Many people prefer the certainty of deciding their own agreement over the uncertainty of someone else deciding it. Also, you and your spouse can each almost any agreement you want to. You can be creative and design a settlement that is different than what the law says.
Mediation is often faster.
Reaching an agreement in mediation often takes less time than having to go to Court because you don’t need to enter evidence, make legal arguments, or convince anyone of anything. Disputes settled in Court can often take many months or even years because of the Court’s availability. Mediation allows parties to resolve their matter faster than they would in Court because the mediator usually has better availability.
Mediation uses an expert.
Judges are experts in the law and they may or may not have particular expertise in family law. Mediators are typically chosen by parties for their expertise in family law.
Mediation is private and confidential.
Courts are public forums. The information about your personal life, including children and finances, becomes public knowledge in court. This can be especially challenging for business owners because their business information may be available to competitors and others.
Mediation is conducted in private and parties are required to keep the proceedings confidential. Anything said, done or disclosed by either party remains confidential. Neither you nor your spouse can use that information as evidence and the mediator will not be a witness in any further proceedings.
Mediation costs less.
Mediation can be significantly less costly than going through the court system. This can make a difference of many thousands of dollars to the parties in dispute.
Avoid the paperwork, time and stress of Court
Mediation can maintain goodwill.
Mediation, by its very nature, is less likely than litigation to result in continuing ill will between the parties involved. It increases the chances of reaching an agreement satisfactory to both parties and allows them to work together again in the future. This is especially important when there are children involved.
Each mediator has their own style and way of working through the issues. Some mediators may have a more facilitative approach, where they do not give you their opinion or ideas. Other mediators are more directive, where they do. Mediators do not give legal advice, however, sometimes they provide ‘general legal information’ in a neutral way to facilitate ongoing discussions. Some mediators also use flip charts or boards to work through the analysis together. Others prefer to just talk or focus on each party’s idea of the solutions. Sometimes mediators set up the spouses in separate rooms and move back and forth to help negotiate the settlement.
Here are the answers to some other common questions we receive about mediation.
Q: How long is mediation?
Every family and case is different. Therefore, the length and the number of sessions will depend on many things – the issues, how much you and your spouse agree or disagree, the personalities involved, level of conflict, and available resources.
Generally speaking, they usually are scheduled for a full or half-day, and families need between one and four sessions to solve their issues when an agreement is possible.
Q: Where does mediation happen?
It usually takes place at the mediator’s office. Having it by video conferencing is also available.
Q: What happens in mediation?
The first few hours of the mediation usually involve introducing the process and providing the mediator with necessary information about your family and the legal issues you are there to resolve. Only then is the stage set for the real work to begin.
Each mediator has their own style and way of working through the issues. Some mediators may have a more facilitative approach, where they do not give you their opinion or ideas. Other mediators are more directive, where they do. Mediators do not give legal advice, however, sometimes they provide ‘general legal information’ in a neutral way to facilitate ongoing discussions. Some use flip charts or boards to work through the analysis together. Others prefer to just talk or focus on each party’s idea of the solutions. Sometimes mediators set up the spouses in separate rooms and move back and forth to help negotiate the settlement.
Talk to your mediator about their specific process and style and be sure to ask them your questions, so you feel comfortable.
Q: Is a mediator neutral?
A mediator is neutral which means that they do not take either party’s side in the negotiation. They are not there to make arguments, convince or support either you or your spouse. The mediator cannot provide legal advice to you or your spouse. Their role is to oversee the mediation process, guide the discussion and help you reach a settlement.
Q: Who pays for the mediation?
The mediator expects that you and your spouse have agreed on how the mediation fees will be paid and that each session is paid in advance or payment arrangements have been made. Usually, you and your spouse will equally share the cost or have come to a different agreement as to how you are going to pay for it.
Mediators usually charge for time spent preparing for, conducting and providing follow-up.
Q: Do I need to get legal advice?
It is a good idea for you and your spouse to each get independent legal advice before beginning. The lawyer that you get advice from can talk to you about whether proceeding with mediation may be right for you.
Q: Will mediation be successful?
You cannot know with certainty ahead of time whether mediation will resolve your legal matter. It is only an opportunity to reach a settlement because the effectiveness, along with its ultimate success, depends on your and your spouse’s commitment to mediate, desire and readiness to reach a resolution, dynamic, level of conflict, personalities and mental health.
Other factors that may affect the outcome include:
- Skills and ability of the mediator.
- Availability of information the parties need to make decisions.
- The fit of the mediator with your family and the legal issues.
- Resources available to you to resolve the issues.
Q: What do you do when you’ve reached an agreement in mediation?
If spouses reach an understanding at mediation, that understanding can be recorded in different ways, including:
- A formal written report outlining the understandings reached.
- Photocopying handwritten notes of the mediator to reflect the understandings reached.
- A draft Settlement Agreement or Court Order reflecting the understanding reached.
Q: Can you end mediation?
You, your spouse or the mediator can terminate the mediation at any time for any reason but a party terminating the mediation should think about how else the matter will be resolved if it is not resolved in mediation.
Q: How do I prepare for mediation?
Preparing for mediation increases the chance that it will be successful and avoid the likelihood of delay because information is not available. Here are some common steps to prepare for a mediation:
- Gather and exchange relevant information and documents.
- Write down important dates and key facts about your relationship
- Think about your objectives and priorities.
Q: What do I bring to mediation?
You should speak with a lawyer about specific information you may need or want to bring but you should start with:
- A detailed list of assets and liabilities.
- Financial information about income and income-producing ability.
- Any necessary disclosure, backup documentation, and other related information.
Q: How do I get my questions answered?
If you have questions for your mediator, they will be answered by the mediator in a neutral way to both you and your spouse at the same time. A mediator will not talk to spouses separately, unless for the purpose of helping settlement discussions in the mediation.
Some mediators have a pre-mediation call or meeting with both spouses to answer any questions and concerns they have.