If you filed for divorce, mediation is, more than likely, coming your way. And that’s a good thing. Regardless of whether or not you’ve retained counsel, courts very often order mediation before you’re allowed to set the case for final hearing.
Most often, mediation is conducted by a trained mediator at a neutral third-party site, where the two parties are placed in different rooms with their lawyers. Good lawyers may send a confidential settlement statement, or settlement packet, to the mediator in advance of the mediation date in order to give the mediator an understanding of the issues in the case. The mediator shuttles back and forth between the two rooms with questions, suggestions, and offers of settlement. Some of your discussions with the mediator will be confidential, while others will be shared. It’s important to get these ground rules for which conversations are shared, and which are confidential, agreed to with your mediator prior to in depth settlement discussions.
Mediation often represents the best chance at a thoughtful, customized resolution of your divorce case. Almost all participants find these sessions to be helpful, even if they were unable to resolve issues in their case. Mediators are not advocates, and are not judges, but they do make great listeners.
Different Types of Mediation
There are different structures for mediation. Some are conducted without, or prior to, any filing in court, and without lawyers. These settlement conferences may be helpful in resolving immediate disputes, but they’re often inadequate at resolving longer-term, or larger issues.
Another form of mediation is when parties represent themselves in court and go to a mediator to resolve the issues in their lawsuit. This form of mediation may be useful in solving issues for the parties, and in resolving the lawsuit. Where we see a difficulty with this type of mediation is parties often don’t understand that a mediator is neither their judge nor their lawyer. You are not arguing your case to this mediator, and this mediator is not going to give you legal advice.
The most successful form of mediation, used to resolve big and small issues, results in order from the judge where both parties are represented by lawyers in an action filed in court. In this type of mediation, lawyers lay out the positions for the mediator who works with both parties to resolve the issues, one by one.
This last form of mediation can definitely save a client money, often times substantial sums of money. Even if the mediation lasts all day, clients will spend much less than if their case goes to a hearing. Additionally, they structure their own settlement to meet the needs of both parents, and their kids, rather than allowing a judge to fashion one which most likely meets the needs of no one.
Is it Best to Have a Lawyer at Mediation?
It’s always best to have solid legal representation with you at mediation. Mediation may be your best opportunity to resolve the case. Also, you don’t want to squander that opportunity by walking in there without the advice of your lawyer.
The mediator is not your advocate, and cannot give you legal advice, so questions you may have, such as, “what should I do?” and, “should I take this offer?” will necessarily go unanswered.
Lawyers protect their clients in mediation in many ways, including the following:
- Provide legal advice
- Draft, or provide input on settlement documents
- Use courtroom experience to assess strategies
- Suggest creative solutions
- Communicate legal issues to a mediator or opposing counsel
- Council client on strategic options
- Extensive experience with settlements
A good lawyer will try and stay out of the way of any settlement. These lawyers focus on protecting the client in settlement deals and negotiations.
Can We Mediate Without Going to Court?
Mediation, when there’s no action filed or motion pending in court, is a worthy exercise in cooperation and compromise. Yet, it does not generally result in binding or enforceable agreements.
For example, an unmarried parents draft a parenting plan with a mediator, but later have disagreements with each other. There’s nothing binding a court unless the agreement was submitted.
Parties can’t get compliance or punish someone for failing to live up to their obligations under an agreement. So a mediated agreement, without underlying court action, is enforceable only through the goodwill of the parties.
It’s a worthy objective to avoid going to court. Many people view the court as a failure in conflict resolution, meaning, the parents weren’t adult enough to resolve their own disputes, and so need a judge to solve them.
So even though parents may wish to avoid going to court, filing an action, and then doing a settlement conference, provides the best route to resolving the dispute once and for all.
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