What is mediation in the context of a divorce or family law case?
Mediation is an attempt at reach an agreement for case matters before they go to trial. Frequently mediation is required by the court for a case to move forward, but mediation can also be voluntarily scheduled by the parties. Having an attorney help schedule mediation is common, but some parties will schedule mediation on their own before hiring an attorney. Frequently, the parties can mutually agree to which mediator to use, or have the attorneys help choose a mutually agreeable mediator. The mediator in a case is also known as a “neutral” in that they should have no preconceived notion about the case, any relationship with the parties (a conflict of interest), and does not favor one party over the other. Their are firms that exclusively provide mediation services, and individual attorneys that mediate cases on a part-time basis. While this may seem like a low risk option, it is more common for an unfair settlement to be reached and be made enforceable when one or both of the parties mediate without legal representation.
Mediation can save money and time associated with taking a case to court, but it can also be highly beneficial to families since it is less stressful and more amicable than dragging a case through court. In some cases, mediation can help divorce cases go from contested to uncontested, and mediation can be used in most family law cases. Divorce and family law mediators are licensed and usually very experienced in domestic matters, but they are not the judge in your case. They can advise what the court may rule in your case, but they do not get to make the final decision. The parties get to make the final decision, and in a successful mediation an agreement will be reached.
A neutral third-party, with training in dispute resolution and/or the law, will sit down with you and your spouse and assist you with resolving issues so that you can solve conflicts and move forward cooperatively. However, frequently the parties are actually kept in separate rooms for most of the time to facilitate agreement, with the mediator going back and forth between the two rooms. Also, most people will have their own attorney present to help in the negotiation process and to ensure their interests are heard and made a part of the negotiations.
What should I expect?
Some mediators prefer to work separately with each party while some like to work with both parties together. Mediation almost always takes less time than litigation and is usually charged on an hourly basis. Depending on the issues and the amount of contention, mediation can range in time from one day to several meetings over weeks or even months. Usually, several sessions are enough to work through the bulk of issues if you and your spouse come in willing to cooperate. The biggest benefit of the process is maintaining civility and amicability throughout the process and being able to decide what will work best for both of you according to your unique needs instead of leaving that decision up to a judge. You can expect mediation to last from a minimum of two (2) hours to perhaps over eight (8) hours. However, even with court ordered mediation, over four (4) hours of mediation is rarely actually required, but the parties can voluntarily stay if they feel that progress is being made.
Because so much information will be presented and so many issues will have to be discussed, we strongly recommend that our clients prepare for mediation with their attorney, and to come up with a comprehensive check list of important issues in their case, and to make sure that each issue is addressed in the mediation and written agreement if one is reached. Otherwise, important issues may be overlooked and it may become too late to do anything about them.
The location of the mediation can be either the court, the office of the mediator, one of the attorney’s offices, or another location that the parties agree on. Court ordered mediation usually takes place at the court, and voluntary mediation usually takes place at one of the attorney’s offices or the office of the mediator. It is best to not make a big issue about where the mediation is being held, and rather spend your mental energy on what is most important to you in reaching a fair settlement.
What is a binding agreement?
When you complete the negotiations and agree to the dispute resolution conditions voluntarily, your agreement is legally binding. Generally, agreements reached in mediation result in a written document (Memorandum of Understanding) and are legally binding for its signatories. Depending on the nature of the dispute and the document, if there is a breach of contract, the other party can file a claim with the court, as with any other legal contract.
Specifically, if one party does not abide by the agreement or tries to prevent it from being considered by the court and made part of a final order, the other party can file a Motion to Enforce and seek attorneys fees from the other party. The vast majority of negotiated settlement agreements will eventually be made part of the court’s order unless the parties mutually agree to change the agreement. So it is very important to not enter into a mediated settlement agreement unless you are sure you agree with all the terms.
What if I am not satisfied with the results?
Because the results of mediation are binding, it is essential that both parties come to the mediation prepared and expect to reach a full, permanent resolution to the issues. If your conditions later change or you are unsatisfied with the results, it is best to consult an attorney to inquire about your options. It is possible that after a final order has been issued to file for a modification of alimony, child support or child custody if the circumstances of the parties have significantly changed. However, it is generally impossible to modify a property or debt settlement provision in a final divorce judgment. This is another reason to be careful in what you agree to in mediation, to respect the process, and to work hard to reach a full and fair agreement.
If you are facing a divorce or family law issue and need help with mediation, call us at 770-609-1247 to discuss with one or our experienced divorce and family law attorneys how we can best help you.