» Mediation

Left to their own devices, many couples going through a divorce, separation or custody dispute are unable to have productive conversations about how to resolve their issues. A mediator can help by guiding the discussion, making sure that both parties have an opportunity to be heard, and helping the couple generate options to resolve each issue.

The objective of mediation is to reach an agreement on all of the issues presented in the case. For most couples the mediation process requires two or more sessions, with each session lasting two to three hours.

Typically, the first session is spent identifying issues to be addressed in mediation, discussing what documents or other information will be helpful in addressing those issues, and creating a timeline for exchanging documents or information. Sometimes the mediator may suggest that the parties meet with outside professionals, such as appraisers or accountants, to obtain additional information the parties might need to reach an agreement.

At the end of each session the mediator provides the parties with a summary identifying the agreements reached in the session and detailing each party’s “homework” for the next meeting.

When an agreement has been reached on all issues, the mediator prepares a mediation agreement, which is reviewed by the parties and their attorneys, if any. In most cases the parties choose to sign the final agreement to make it binding.

Sometimes agreements cannot be reached on all of the issues in your case. However, every issue on which you reach an agreement is an issue over which you, and not the Court, are exercising control. It is less expensive and takes less time to present one or two issues to the Court rather than five or six, so having even a few smaller issues resolved prior to a court date is worthwhile.

It is important to remember that a mediator cannot give either party legal advice. Mediation is not a substitute for the services of a qualified family law attorney. Each party is encouraged to obtain independent legal advice during the mediation process and to have the final agreement reviewed before it is signed.

Many parties participate in mediation without attorneys. Sometimes parties who have attorneys will agree to participate in mediation by themselves, with their attorneys available to answer questions during or after the session. However, when both parties are represented it is most common for the attorneys to attend mediation sessions with their clients to advise and guide them throughout the process.

You do not have to have a court action pending or appear in court to participate in mediation. Many couples choose to mediate their case before anything is filed with the court.

The mediator does not draft divorce documents or court orders. These documents are prepared by attorneys involved in the case. If neither party has an attorney then the parties need to prepare their own divorce documents or orders and file them with the court.

The Court cannot require you to participate in mediation if a court has found domestic violence to exist in your relationship. However, there are options available in the mediation process (such as meeting in separate rooms) that are designed to ensure the physical and psychological safety of each party while still allowing the mediation process to move forward.