What is divorce mediation?
Mediation is a method of alternative dispute resolution. When you’re before a judge or an arbitrator, you have a third party who is ultimately responsible for making a final decision on your conflict. Mediation is about empowering people to actively engage to work towards a mutually acceptable resolution.
What is a mediator?
A mediator is a neutral person(s) who provides the structure and guidance to individuals who are participating in mediation.
How does mediation fit into a legal case?
Attending mediation doesn’t minimize or take away from your legal case. Most mediations occur as part of a legal case. Instead of pushing for trial, parties will mutually agree to work with a mediator who can support them in negotiating a resolution to the disagreements in their case. This allows the parties to maintain a sense of control over a disagreement which is likely very personal and not something that they want a third party deciding for them. If for any reason mediation isn’t successful then the parties can return to their judge and pursue a trial. At least you will know that you tried what you could to work together towards a resolution.
What cases can use mediation?
Any case involving two people with a dispute can benefit from attempting mediation before trial. There are certain areas of the law where attempting mediation is mandatory before the court will consider setting trial. Issues can range from: personal injuries such as car accidents or slip and falls to contract disputes, construction disputes, and all elements of divorce cases: custody, visitation, asset division, and support payments.
How much does mediation cost/how much does divorce mediation cost?
Each mediator is going to set their own hourly rate. Mediators will usually ask for a retainer and it isn’t unusual for the retainer to reflect the complexity of the disagreements. Typically, mediations are perceived as being less expensive than a traditional litigation route. This is true for a few reasons:
Both parties are sharing the cost of one professional instead of each paying for their own legal representation.
Oftentimes mediators may not complete paperwork and instead just provide services during the meetings; this can assist with keeping costs low as the parties are also contributing to the paperwork component of their legal matter.
What is difference between mediation and arbitration?
Arbitration is similar to a traditional legal proceeding. Both sides present their positions to a third party who then makes a decision based upon the information they receive. This is different from mediation because the mediator will never make the decision for you. In mediation, all agreements and decisions are reached by the participants themselves, not dictated to the participants.
When is divorce mediation not recommended?
The vast majority of cases are great candidates for mediation. You may be surprised by this, but even cases where domestic violence has occured can be eligible for mediation. The critical issue is making sure that both parties are open to working together to find an amicable solution. If a party has a personality disorder like narcissism or borderline personality disorder, that can make the process more challenging, but it is not a complete bar from participating.
How long does divorce mediation take?
There are many factors that influence the pacing of a mediation. Most of those factors will be outside of your control, so the best thing you can do is be on top of your paperwork, understand your legal responsibilities, communicate clearly with your mediator and respond timely to questions and requests.
The length of a divorce mediation is dependent upon both the mediator and the participants.
The mediator: perhaps you have a mediator who takes a cautious approach to building a rapport with both sides. The mediator may require a certain number of preliminary meetings before diving into the bulk of the mediation. This can prolong the process, though typically laying this foundation can have a very positive impact upon the mediation process.
The parties: have the parties completed any legal mandatory steps, such as financial disclosures? If the parties are very motivated to proceed quickly—responding promptly and completing any necessary paperwork—it is possible for the parties to set an quick pace. Alternatively, you may be mediating with someone who is not motivated to reach a resolution in the case – maybe they don’t genuinely want a divorce and are trying to stall the process– in which case it could be a slower journey.
Who are mediators?
Anyone can be a mediator! That is a little exaggerated – any adult interested in alternative dispute resolution methods can become a mediator. That said, not everyone will be a successful mediator. Mediators are not required to be lawyers, though many lawyers transition to mediation. Mediators can also be mental health professionals, but they do not have to be.
What are good questions to ask when deciding which mediator to work with?
Since there is no professional regulation over mediators, here are some ideas about questions to ask during your consultation.
What is your mediation training?
How often do you participate in additional mediation trainings or courses?
What type of cases do you typically mediate?
What is your comfort level with high conflict personalities?
You’ve hired a mediator. Now what?
How does divorce mediation work?
Each mediator will have their own process for guiding parties through mediation. This is an important topic to discuss with any mediators you are considering working with. Consider asking: do you have individual sessions with each person? Are there any elements of mediation that are confidential, or is everything we discuss going to be shared with the other party?Some mediators will include the parties in the process of creating ground rules for the mediation and then read the ground rules at the beginning of each mediation session.
How to prepare for divorce mediation.
Preparation for mediation can encompass different elements. Practically speaking, you need to take stock of your case from a 50,000 ft view. Do you know what issues you need to resolve?re you starting from the beginning and hoping to resolve a large array of issues, or are you coming in at the middle and with a limited number of issues you want to address?
Once you have an idea of the number of issues you believe you will address during mediation then there’s the matter of making sure you have the knowledge you need to discuss them. If you’re going to be focusing on finances, there is a need to familiarize yourself with your finances (i.e. how much debt is there to discuss, what types of assets are there to be divided?) If you’re discussing school choice, what are the pros and cons of each school?
Lastly, while the nuts and bolts are important, knowing yourself, your values, your core motivations is truly critical. Understanding why things are important to you and being able to articulate them will be really helpful in moving you through mediation.
What not to say in mediation
Do not spend time focusing on blaming each other for what has happened in the past. The moment you focus on the past and throw blame, the mediation will screech to a halt. Having a support network—including friends, family, and a therapist(s)—is important. Rely on these individuals for the expression of your anger and frustration. Keep in mind that mediation is for the exploration of solutions that will allow you to move forward, not for reliving the past.
What to wear to mediation
Mediation is not limited by geography. It is likely reasonable to say that a large portion of mediations are currently occurring remotely, utilizing zoom, microsoft teams and other remote meeting platforms that have grown in prominence since COVID19 and our transition to a remote life. Whether your mediation is in person or remote, prioritize your comfort. You are not attending a hearing with a judge in a formal setting. A mediation is about collaborative problem solving. Be comfortable.
Do I need a lawyer for mediation?
In short: no, you do not need a lawyer for mediation. That said, many people do utilize a lawyer during the mediation process. A lawyer can be utilized in many facets. Your lawyer can be known to the mediator and other party or your lawyer can represent you privately, without you disclosing them to the mediator. There are many reasons people use a lawyer during the mediation process, such as to help with the preparation of paperwork if your mediator does not provide that service.
What if mediation doesn’t work?
There are times when mediation does not work, and in that scenario you simply return to your judge. That will likely mean filing a motion and requesting a trial.
How to get what you want in divorce mediation?
The most important thing in mediation is for both parties to keep an open mind and the ability to listen to the other person. Knowing what you want enables you to listen fully to the other person so that you can get to the bottom of the other party’s motivation. Once you both understand each other and the ‘why’ behind your requests, creative solutions become possible.
Remember, mediation isn’t about ‘winning.’ If you enter mediation motivated by a desire to ‘win,’ then mediation likely will not work for you. Know what you want, your ‘why,’ and be willing to work with the person across from you to arrive at a solution that serves both your needs.
Who pays for mediation?
Typically parties equally share the cost of mediation; however, parties are free to reach a different agreement about payment if there is a more appropriate option.
When is a mediation agreement enforceable?
An agreement reached through mediation becomes enforceable once it is written down in a memorandum of understanding; however, that alone isn’t sufficient. Any agreements need to become either an order of the court or part of your court judgment. The specific document you need for enforceability will depend upon the specifics of your case.
Is mediation legally binding?
When an agreement becomes an order of the court, and/or a part of a legal judgment, your mediated agreement will be legally binding and violation of that agreement can have financial and legal consequences.
How long after mediation is divorce final?
This will depend upon the specifics of your case, including how long ago was it filed, and the state wherein you reside.
Can I change my mind after signing a mediation agreement?
Minds do change, but what can you do about it? If your agreement is an order of the court, then you will either need to persuade the other party to reach a new agreement, or utilize a legal remedy to obtain a change of the agreement.
Do judges follow mediator recommendations?
Mediation is confidential. Your mediator is not legally allowed to share information about your mediation. Your mediator will not communicate with your judge in any fashion.
At Gomez Edwards Law Group, we’re here to answer any questions you have about mediation. For a consultation, please call us at (408) 413-1200.
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