FAMILY LAW MEDIATION
Meditation is a process of voluntary and often confidential negotiations concerning outstanding issues or differences between parties facilitated by a neutral third party, the Mediator. It is often called an alternative dispute resolution.
Divorce mediation is voluntary. Some counties offer referrals to mediation if a family law matter is set for hearing. The first session may be at no charge.
Mediation involves direct negotiation between the parties to the divorce -- though each may be represented by consulting attorneys. In a divorce action, typically the issues which need to be negotiated are child custody and visitation, division of marital property, child support, and spousal support or alimony. The mediator may be assisting with one or more, or all of these items.
Information divulged during mediation settlement negotiations is confidential. Divorce settlement negotiations often are protected by law as confidential and may not be introduced in court if negotiations break down. Privately hired mediators may be covered by state legislation making information disclosed in mediation confidential or may require that their clients sign a confidentiality agreement so that disclosures or compromises made in mediation may not be used later in litigation against the party.
How mediation is conducted varies with the practitioner. Mediation of a family law case usually consist of a series of meetings with the mediator at the mediator’s office. There may be a meeting to set the agenda of issues, then one or more meetings on each issue. Court documents may be filed during pendency of mediation, and temporary arrangements may be made as to support, custody, and living arrangements.
A mediator performs various roles. The mediator works as an "information gatherer." The mediator may also assist the parties in determining the appropriate amounts of child and spousal support. The mediator may draft temporary agreements and/or final overall settlement agreements, or may provide the parameters of the agreements reached by the parties to consulting attorneys for drafting. The mediator is a person neutral to the issues and does not represent or advocate the interests or concerns of one party over the other. The mediator's role is to assist the parties in direct negotiation defining areas of agreement and disagreement on the issues in mediation and to assist the parties in negotiating contested issues to settlement.
The parties in a family law mediation would generally be the parties to a divorce action, but mediation potentially could involve other family members -- grandparents, step-parents, teenage children, etc.
Who is the Mediator?
Anyone can be a mediator, so the consumer must exercise caution. Currently private mediators are not licensed, nor is any formal training required. Typically family law mediators may be attorneys or members of the mental health professions.
If a mediator is an attorney, she/he does not represent either party and if mediation breaks down, cannot then represent one of the parties. The benefit of having an attorney-mediator is that she/he can provide legal information to parties as a reference point for settlement, i.e., can give the parties information as to what might happen in court.
A mental health professional mediator can provide information on child development, family dynamics, and can be a resource for referrals for individual, family and co-parenting counseling.
How to choose a mediator
Get referrals from others with knowledge of the mediator’s training and experience -- other clients or professionals practicing in the area of family law or family therapy. You can also call the mediator’s office for information on services and the qualifications of providers.
Consulting Attorneys
Often it is advisable for each party to be represented by an attorney during mediation process to answer legal questions, explain options, draft court pleadings and agreements or review agreements drafted by the mediator.
Participation in mediation by other professionals usually at discretion of mediator, who may allow degree of participation sessions and may provide information, drafts, and documents at request of clients.
Use of other Mediators
The parties may have separate mediators for custody and visitation issues as opposed to property and support issues.
Use of other Professionals
Appraisers, Actuaries, Tax Professionals may be employed to value assets such as business, employee benefits, stock options, pensions, and to provide tax planning strategies for settlement.
Benefits of Mediation
Confidentiality -- Court proceedings are generally a matter of public record. Mediated proceedings can keep some aspects confidential. Some courts allow withdrawal of the final agreements from the court fie following court approval.
Parties fashion their own resolution rather than having court imposed arrangement. They know their own family an circumstances best. They can follow the principles of governing law or deviate as they see fit.
Sets the tone for continued dialogue and cooperation between parties ho my need to work together on co-parenting or property issues subsequent to divorce to divorce.
Can be less costly financially and emotionally.
Even when mediation is not ultimately/thoroughly successful, often refines issues for later determination.
Drawbacks to Mediation
Parties unable to assert their own needs may not do well in mediation as the mediator does not act as an advocate of either party.
May not be suitable for partner of a dominant or overreaching spouse.
May not be suitable if there is a question about the honesty and willingness to make disclosure on all relevant issues.
May not be suitable when parties have unequal bargaining power/sophistication, though a good consulting attorney may be able to bring balance to negotiations.
May be used by a party who doesn’t want the divorce as a way to delay the inevitable.
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