Most courts have recognized the importance of parties attempting to resolve their disputes out of court in an informal setting, especially in family law matters that involve custody and parenting time disputes over minor children.
If you are going through a divorce, establishing paternity or modifying an existing custody and/or child support order, it is highly likely the court will order the parties to participate in mediation, or your attorney may recommend going to mediation.
Here is some information and advice on everything you need to know about the mediation process.
What is Mediation?
Mediation is a non-adversarial alternative to litigation wherein the parties work together with the help of a neutral third-party (who may or may not be an attorney) to determine their own outcome as opposed to having a result imposed upon them by a court.
Mediation can occur at any time after a case has been filed, but typically happens after the parties have had the opportunity to exchange discovery requests and review the information submitted. Parties may agree to mediate their dispute or may be ordered to do so by a court.
In some states, courts will order the parties to participate in mediation before a final hearing is scheduled when there are minor children.
Mediation typically occurs in an office rather than a courtroom, making the process less formal than a court proceeding.
Depending on the complexity of the dispute, mediation may be scheduled for a single session ranging from a few hours to an entire day, or even multiple sessions over the course of a few weeks.
In most divorce actions, mediation will last an entire day.
Mediation is flexible and confidential. Anything you say at mediation cannot be used as evidence against you at a final hearing if an agreement is not reached during the mediation sessions.
By protecting the communications that are made during mediation, you will be able to openly express your concerns with the mediator and make offers or suggestions as a compromise to resolve existing conflict that you might not have considered before while at the same time receive impartial advice and recommendations from the mediator.
It also gives you and your spouse a chance to reach an agreement that will accommodate your schedules, finances and preferences.
If you are able to reach an agreement, it can help limit future conflict that might arise between you and your soon-to-be ex. This is extremely important if you have children and must interact with your former spouse after you are divorced.
Who is a Mediator?
A mediator is an impartial and professionally-trained person who acts as a go-between, working individually with the parties or together, to try to work out the terms of an agreement that resolves the pending issues.
The mediator does not decide the outcome of the dispute, but rather assists the parties in reaching their own mutually acceptable resolution. Although mediators are often also attorneys, the role of a mediator is not to give parties legal advice.
A mediator may inform parties of certain applicable laws, rules and guidelines so that parties may have the information necessary to make well-reasoned decisions, but it is your attorney who you will need to rely upon to help you decide whether you should accept the proposed agreement.
After it has been decided or ordered that you must participate in mediation, the first step will be selecting a mediator.
The attorneys for the parties will usually suggest a few different mediators to use, taking into consideration each mediator’s particular skill set as it relates to the particular issues in the case, the location and the mediator’s fees.
How much does Mediation cost?
The cost of mediation in family law cases differs in each county and sometimes in each case.
If you have been ordered to mediation by the court, some counties will provide mediation services to the parties or offer reduced costs based on financial need through their county’s court ordered mediation program.
In some cases, the court may order the parties to participate in mediation and use the services of a private mediator. The cost of private mediation varies from mediator to mediator, so make sure you request a fee schedule before agreeing to select any given mediator to help with your case.
Most mediators will require a “retainer fee” for the costs of their services before the mediation may be held, but this cost is much lower than the retainer fee you may have been required to pay to your attorney. The mediator will also have an hourly rate by which they charge. The longer the mediation takes, the more expensive it will be.
Most mediators will request that both parties pay a “retainer fee” in order to make sure that everyone is equally invested in the process.
If you do not have to pay for mediation and know that the other person has to, you may be more likely to try to drag it out longer to make the other person have to pay more, whereas if you both are required to pay for some of the costs, you are more likely to become invested in the process, and truly try to work toward reaching an agreement.
Editor’s Note: This is the first of a two-part series outlining the mediation process.