What is mediation?
In its simplest form, mediation is a process in which parties in conflict work with a neutral third party to reach an agreement.
The art of mediation lies in creating a process where the end result is an agreement that both parties feel is fair and equitable; one that was reached together through compromise and meets the shared interest of the parties. Ideally, this is a process that bends and molds to the needs of the parties, not the other way around.
What types of cases can use mediation?
Mediation is often utilized in the context of divorce proceedings but is a process that is readily adaptable to any conflict. Mediation is used in guardianship cases, paternity disputes, parenting cases, estate contests, contempt proceedings, relocation disagreements, changes to parenting plans, parenting disputes, enforcement of decrees, alimony and child support, and numerous other conflicts. Parties have used mediation to set forth ground rules for trial separations, and as an outline to explore reconciliations. Mediation has even been used to help parties, both married and divorced, reach agreements on college education funding and the support of adult children.
When and how in the case can mediation be used?
Mediation can be initiated prior to filing a formal petition in court, or after litigation has stalled. It can be accomplished with all of the parties together at the table, or with the respective parties in separate rooms. Mediation can be conducted in person, or through the use of technology when parties are separated by a great distance.
Mediation is about finding a way to help you resolve your conflict. The particulars are based on what will work best to help you do that.
We work with clients in both our capacities as mediators and attorneys. How those relationships begin and what they look like are different depending on the role.
- Attorney role: If our role is to assist you as attorneys, we will just meet with one party and will be acting as that person’s advocate and lawyer. Together we will talk about your needs and how we can best help you as your lawyer in this process. Our job will be to give you legal advice and specifically advise you on your rights and options. This can vary from simply coaching you before you meet with your spouse to attending mediation with you as your counsel and representing you through to document filing. At our first meeting we will work together to determine what your needs are, how we can best meet your needs and what role you would like me to play.
- Mediator role: If our role is as a neutral mediator then we are working with the parties as a group or couple. Our job is to be a neutral party in the process and to help you work together to make decisions. We cannot offer legal advice to any of the parties and cannot advise you on what decision to make. We will help create a respectful and safe process for you to determine for yourselves what this transition will look like for your family.
It is important that if you are looking for us to act as a mediator, that we are neutral from the beginning. For that reason, we cannot act as an attorney and then become your mediator.
To begin the process, we can speak with all of the parties on the phone for an initial conversation about the process, either individually or together. During that conversation, we will just be talking about the process and you can take the time to make sure you feel that we are the right fit for you. Choosing a mediator is a very personal decision and it is important that all the parties feel that the mediator is a good fit.
Once all of the parties have agreed to mediation, we will schedule individual sessions with each party. This gives us a chance to get to know each of the parties and to help identify the areas of conflict that we will be working through. After we have meet with all of the parties, we will schedule our first mediation session.
In our role as a mediator, we are able to take the agreements you reach and use them to prepare all of the documents needed for the court.
Types of mediation
- Kitchen table negotiation: This refers to parties who are able to sit together and come to agreements on their cases without the assistance of a neutral third party.
In these cases there are still often attorneys involved on some level. Some clients will meet with us before they talk to the other party to get information on their rights and the process itself. They may or may not tell their spouse that they have even met with us. This education often helps people feel more confident about the decisions they have they make.
In other cases, Attorneys will be brought in once the agreement has been reached. We can help you by taking the agreements you have made and generating the proper legal documents to be filed with the court. Many couples would like to be able to meet with an Attorney together to do this, but unfortunately this is not something we can do. When we draft documents, we may only officially represent one party in the case. The normal procedure is for one party to meet with us and lay out the agreement that has been reached. We will then draft the documents and provide them to you for review. Both parties will review the documents to ensure that the terms reflect their understanding of the agreement. Once the documents are approved, we can then help by ensuring that all your paperwork for the court is complete and accurate.
- Mediation with neutral mediator: (Three party, i.e., one neutral mediator and the two parties)
For a majority of parties, communication issues and emotions make it hard to be able to sit down and work through all the decisions and choices required in these cases. For them, the use of a neutral mediator is crucial to being able to resolve their case out of court. The mediator’s job is to walk the parties step-by- step through all the decisions that need to be made and to help them come to a fair and equitable agreement. What is fair and equitable is different in every case and it is not the mediator’s job to make any decisions in the case. It is simply to help the couple make those choices for themselves. Mediation is about the parties deciding for themselves how to make these transitions.
When the parties decide to utilize mediation, many still find it useful to hire an Attorney to assist in the process. For some couples, prior to beginning mediation, they will each meet with an Attorney on their own so as to be educated about their procedural rights and to receive legal advice on certain issues of concern. This information helps them feel comfortable in making choices during mediation. Still others will hire an Attorney to review the agreements they have reached in mediation before signing. Depending on who the parties use as a mediator, an attorney may be needed to draft the documents. (See the unbundled page for more information.)
- Mediation with Counsel: (Five party, i.e., one neutral mediator, the parties, and their respective attorneys)Mediation with counsel can be an effective and efficient way to resolve more complicated cases. When parenting issues or finances are complex, the presence of Attorneys during mediation allows for the provision of legal advice “in the moment,” which often reduces unnecessary delays. In such cases, both parties hire their own Attorneys to represent them in the mediation process. The Attorneys attend mediation with their clients and assist in drafting the final documents. The Attorneys help the parties gather the right information and can assist in choosing a mediator with the expertise needed to help them resolve their case. Attorneys can also help the parties hire outside professionals or experts if needed to help the parties be able to make informed decisions.
- Mediation with counsel and neutral financial planner: (Six party, i.e., neutral mediator, the parties and their respective attorneys, and a neutral financial planner (“financial neutral”))For many parties, the consequences of and choices around how to handle their finances after the divorce is a stressful and fear-laden issue. There may be concerns about retirement or college costs, or there may just be general concern regarding how to afford two households instead of one. The use of a financial neutral can help the parties determine how to maximize their finances for the benefits of both. The financial neutral will work with the couple to determine their financial goals and then help them find the best way to achieve them. The participation of a financial neutral in mediation can help the parties play out the different options and scenarios to determine how each course of action will impact both of their financial futures. This approach has helped many couples be able to feel more secure in their asset division and has helped both of them feel more confident in what the future will look like moving ahead.
- Court ordered mediation: In most cases, after the parties have filed their case in court, the Judge will order the parties to attend mediation to see if they can resolve all, or even parts, of their case. In court ordered mediation, the court assigns a mediator along with a date and time for mediation. The court will also make an order as to how the fees for mediation will be paid between the parties. Payment for mediation is due at the time of mediation so it is important to bring a check or cash with you to pay the mediator. These sessions commonly take place at the court house and are normally scheduled for two hour blocks. You can attend this mediation with or without counsel. Many clients find it helpful to have a lawyer involved in this process either to attend mediation with them, or to counsel them before mediation begins. If you are able to reach an agreement, it is also advisable to have an attorney review the agreement before you sign it.
Benefits of mediation
- Avoid Court: If parties are able to reach a full agreement, there is rarely a need to actually go to court. Upon reaching such an agreement, it is memorialized in one or more documents which are then filed with a court. In such cases, the court’s involvement is often limited to approving the agreement of the parties.
- Client Satisfaction: There is a cost to conflict that far exceeds monetary expenditures. The stress, uncertainty, and acrimony associated with litigation can be mentally and physically taxing. Some people have a preconceived notion that they will be vindicated through the court process – that someone will tell them they were “right” or that they have indeed been “wronged.” In truth, litigation provides no such easy answer. Rather, most parties find themselves pitched in a long and arduous battle after which they merely feel frustrated and unheard. The judge didn’t “get it” and the resulting order doesn’t do what is best for their family. The process that they hoped would give them long-awaited satisfaction leaves them completely dissatisfied. This is true even in those cases where the party “won.” What people fail to recognize is that the stress and emotion of any difficult transition is exponentially increased during the adversarial process. Court is often about laying blame and exploiting our worst moments and failings: a tit-for-tat show of our worst moments as parents and partners. In mediation, we aim to create a respectful and supportive process to help you move through this difficult time. It is not about judgement or blame for the past; it is about resolution and moving forward. The idea is to create a forum for you to reach agreements together about how this transition will ultimately resolve.
- Control of the Process: The decisions that need to be made in these cases are about your finances and your family. Ultimately, the decisions will be made, but the question is: “Who is going to make them?” In a litigated case, a judge who knows little or nothing about your family will be making decisions that will impact your family forever. Mediation allows you to enter into agreements that work best for your family. The process is about deciding – together – what is best for your particular case. The agreements that have come out of mediation are as varied and unique as the families that are involved. We are continually awe-struck at the creative and ingenious solutions that develop in the mediation process, especially so when the solution was to a problem that appeared insurmountable only a few hours earlier.
- Reduced Cost: Litigation is expensive, and the total cost is highly unpredictable. Continuances and the discovery process can feel endless and can raise legal fees without actually moving the case forward in a meaningful way. Mediation typically costs less because the focus is on resolution, not battle. In litigation, the court requires certain documents to be filed and information exchanged. This can, and often does, increase the cost incredibly. In mediation, the parties can work together to gather the necessary information and can determine the best use of resources. The cost is much more predictable and is to a much larger degree within the control of the parties.
- Maintain Your Privacy: Divorce mediation is a private process, unlike litigation which plays out in a public courtroom with public documents. Mediation allows you a confidential forum to determine how these issues impact your family and what that will mean as you move ahead. Issues of infidelity, addiction, mental health, sexual orientation and other personal issues are not used as weapons or listed in court documents so as to harm the other person or cause embarrassment. In cases where such an issue is part of the conflict, we approach it in a constructive manner that focuses on resolution, not attack. However, we also recognize that these factors are part of the story and we need to give the parties the room and the opportunity to address them when needed. This will mean different things to different parties, so we tailor the process to fit each individual’s needs. By working together though these issues both parties can find a way to be heard and respected.
- Faster Agreements: Litigated cases often take well over a year to get to a final hearing. Recently, the time has been extending even longer. Once you get to court, many parties wait weeks and sometimes even months to receive decisions from the court. With mediation, you determine how quickly to get started and how often you want to meet to resolve your case. Although there are many factors that determine how long your case will take, mediated cases are often resolved within 90 days.
- Your Own Timeline: Divorce mediation participants create their own timeline. The case can move at the pace that best suits your family. Litigation clients are subject to the timeline and appearance requirements of the court system.
- Preservation of Relationships: We will often ask clients to think about what they want the epilogue to their story to be. What do they want to be able to say about this process and transition in five years? For many, they want to be able to be at their children’s weddings and graduation without worrying about having to see their spouse. They don’t want their children to feel like they have to choose one parent over another. They want their children to continue to have two parents even though they are no longer married. For others, they want to do no more harm to those they love and they want to be proud of how they handled the process. They want to be able to come to a place of peace about the ending and to move forward. For all of them, mediation was a huge part of reaching those goals. Mediation assists the parties in communicating and in finding common goals and interests to help craft an agreement that is mutually satisfying.