What is Mediation?
Mediation is an efficient and inexpensive process designed to help people reach the best agreements for them when separating, divorcing, having family disputes, problems at work, complaints with landlords or tenants, and issues with neighbors. A trained professional mediator assists you in obtaining the information you need to resolve these conflicts and to focus on the issues that must be resolved in order to work them out as amicably as possible.
Most divorce and family mediators have completed a divorce and family mediation training course. Many mediators apprentice with other mediators or obtain supervision of other mediators for a time after they complete their basic training. Professional mediators generally pursue additional training in the substantive issues of separation and divorce. Most mediators bring years of relevant professional experience to their practice.
If you are involved in a divorce or another family issue filed with the court, any agreement you reach in mediation may then be filed with the court. You should speak with your lawyer about how this works and what your options are. The court generally reviews the agreement to assure that it conforms to the standards that have been established, such as the child support guidelines and financial matters.
Mediation is a private process, not open to the public. You will be asked to sign a confidentiality agreement before beginning mediation. The mediator is bound by law to keep confidential what is discussed in mediation.
If you are using mediation in order to obtain a divorce, you will have to file in court for your divorce. However, if you are able to reach a mutually agreeable resolution to all the property, financial, custody, parenting, and other issues that you are attempting to resolve, and the court accepts your settlement, it is unlikely that you will have to make many court appearances.
In divorce cases, mediators will recommend that each spouse be represented by his and her own attorney. However, by using mediation, it is likely that you will use fewer legal services and that those you use will be different than if you did not use mediation. Your lawyer will provide you with guidelines and legal counsel and can draft documents for filing with the court. Even when the mediator is a lawyer, the mediator is not acting as a lawyer and cannot represent either person in the divorce
You should approach hiring a mediator just like you would any other professional, such as a physician, lawyer, or accountant.
- Before choosing a mediator, you should obtain the following information:
- Training, experience, and background of the mediator
- Experience or knowledge in mediating the type of issues you have
- Fees charged and how fees are divided among the parties to the mediation
- Professional Memberships
Most important is whether you are comfortable with the mediator’s style and approach to the process.
Because each and every mediation is unique, it is hard to predict exactly how long your mediation will last. In general, full divorces, including custody issues, division of property and assets, takes between three and eight sessions. In addition, the mediator will take time to prepare the Memorandum of Understanding, outlining all of the agreements that you have reached through the mediation process. Mediation is voluntary and any party, including the mediator, may end it at any time.
Generally, mediation sessions are scheduled to last from 1 1/2 hours to 2 hours, depending on the couple’s needs and available time.
During the initial consultation, you will identify the issues that need to be decided in the case of separation or divorce. Depending on the issues, the urgency of the decisions and how quickly you wish to proceed, the mediator will schedule meetings that meet your goals/time frame/interests.
Your mediation costs will be based on an hourly fee and initial retainer. These fees will be charged for all mediation sessions, time spent on reviewing and drafting documents, telephone consultations, e-mails, and consultations by the mediator with your attorneys or other advisors in the process. The cost of mediation is generally significantly less than if you each hired lawyers to represent you in your divorce without using mediation.
You and your spouse will both be present at the mediation session. On occasion, the mediator may wish to speak with each of you privately (and confidentially).
All financial information must be disclosed and verified as part of the mediation process. The mediator will work with you to determine your income, expenses, assets, liabilities, retirement funds and other financial information that is required as part of a legal divorce. Should information be withheld during the mediation process, any agreement reached may not be valid. For parenting or custody issues during pre-decree or post-decree mediation, financial information may not be necessary.
In a typical divorce mediation, the following issues must be addressed in order to generate an agreement that may be submitted with the court:
- Children: Parenting responsibilities and time; living arrangements; legal and physical custody; insurance, education, support and many other issues
- Assets and Debts: How these will be apportioned
- Property: Marital home, cars, retirement accounts, other personal property
- Spousal Support: Whether there will spousal support, in what amount and for how long
- Insurance and Medical Expenses: Who is responsible for medical insurance for the children
- Tax Issues: Who has tax liability for property and assets sold, etc.