Everything You Need To Know About Mediation: Part II

  • Mediation typically involves both parties, their attorneys and a neutral third-party mediator
  • The mediator can meet with both parties together or go back and forth between them separately
  • A couple can reach a complete settlement, partial settlement or no settlement during mediation

While many people going through divorce may have heard of mediation and have an idea of what to expect, others might not have any clue what it is and why it is recommended or required by the courts.

This alternative dispute resolution process allows both parties to negotiate the terms of their divorce between themselves instead of relying on a judge to make the decisions. Generally speaking, couples who successfully mediate their divorce are much more satisfied with the outcome.

Here is a brief outline of what happens during and after the mediation process so you know what to expect.

What happens during mediation?

Mediation usually involves both parties, their attorneys and the mediator.

The parties’ attorneys do not have to attend the mediation, but is recommended that your attorney attend the mediation with you in order to help you evaluate and consider the benefits or disadvantages of entering into a particular agreement.

Your attorney will also be able to help communicate important facts, or provide specific documentation to the mediator that is of legal importance to the outcome of your case.

Sometimes parties are encouraged to give information to the mediator prior to the mediation session to help the mediator resolve the dispute, such as financial information of the parties, proposed marital balance sheets, pleadings filed with the court, and/or any other documents that you would use as evidence at a final hearing.

A mediator may first meet with the parties together, then meet with each party separately, going back and forth between the parties until an agreement is reached.

Mediators may meet at any time with both parents/participants together as they work towards an agreement. It all depends on whether the mediator thinks it will be more beneficial to keep the parties separate, or bring everyone together to try to work out an agreement.

It is important to remember that conduct or statements made while negotiating or attempting to resolve issues at mediation are confidential and not admissible in court.

Mediators are not permitted to testify about matters discussed at mediation, and the parties are not permitted to testify at the final hearing what settlement offers the other party made as a reason for requesting a certain order from the Court.

For example, let’s say that you and your spouse both want to live in the marital residence when the divorce is finalized. At the mediation, your spouse offers to let you have possession of the marital residence so long as you pay her $50,000.00 from your retirement account.

If you do not reach an agreement on this matter at the mediation, you cannot testify at the final hearing that you should get possession of the marital residence because your spouse offered to give it to you at mediation.

The reason negotiations are kept confidential is because the process cannot really work if both parties are afraid of saying something, or offering something, that could later be used against them at the final hearing.

It is highly encouraged and essential to the process that both parties come in to the mediation with open minds and are willing to make compromises and offers to reach a final agreement.

What happens after Mediation?

What happens after mediation will depend on whether the parties are able to work out an agreement or not. One of three things could happen:

  1. You reach a complete final settlement agreement at mediation.

If this happens, the final settlement agreement will be filed with the court, and if the court approves it, you are finished! Your attorney will advise you as to whether anything else needs to happen to make sure the terms of the settlement agreement are carried out, but you will not have to appear in court for a final hearing.

  1. You reach an agreement on division of the marital estate, but not custody, parenting time and child support (or vice versa).

If this happens, you may still be able to file the partial settlement agreement with the court and request that it be approved while reserving the undecided matters to be determined at the final hearing.

  1. You do not reach an agreement.

If you do not reach an agreement on anything, the mediator will file a report with the court to state that the parties participated in mediation, but failed to reach an agreement.

If the court has required the parties to attend mediation before it scheduled a final hearing, the court will now be able to set a final hearing date.

It is highly beneficial for both parties to work hard towards coming to an agreeable settlement before making it to court, as litigation takes much longer and significantly increases the overall divorce cost.

The more disputed issues you can resolve before making it to court, the cheaper your divorce will be, and mediation can be a very effective method to help you achieve an agreeable divorce.

Editor’s Note: This is the conclusion of a two-part series outlining the mediation process.

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