Divorce Mediation is a way to work out disputes in a divorce case with the help of a third party (the mediator) to avoid court and a trial. There is no judge during the mediation and the mediator is not supposed to represent any party or provide any legal advice. While mediation is a way to avoid a trial, cases may still go to trial if the parties are not able to reach an agreement.
The mediator will help communication between the two parties by giving each individual the necessary time to speak and help clarify the communication by asking any questions to determine what the legal issues are and what each party is seeking in the process. In most family law mediations, the parties are in separate rooms and the mediator goes back and forth between the rooms and explains each party’s position and proposal. Mediation is about compromise, so the goal is for the parties to reach a solution they can both live with in order to avoid the uncertainty and expense of court. Mediators in family law cases should have experience as a family law attorney or be familiar with family law. An effective mediator needs to have an understanding of the family law issues involved and the potential range of outcomes if the matter goes to court in order to be able to guide the parties towards unique solutions for their particular conflicts.
Why Divorce Mediation?
Mediation will allow individuals to have more control over what happens versus a judge making the decisions for them. Going to court can also be expensive and mediation will help the parties avoid a costly and likely lengthy court battle.
The Process of Divorce Mediation
Mediation will usually last a full day of 8-10 hours or more, depending on the issues involved. In some cases, it may be necessary for the parties to come back for a second session. If an agreement is reached then the mediator can prepare a Memorandum setting forth the general terms that the parties have agreed to for everyone to sign that day and the lawyers can then draft the formal agreement afterwards, or the lawyers can work on drafting the agreements as the mediation continues to progress. Mediators are not ethically permitted to draft legal agreements for the parties or their attorneys.
The Role Lawyers Play in Divorce Mediation
Even if a couple is going through divorce mediation, they may still need the services of a lawyer. The lawyer must prepare the agreement and should assist their client with reviewing any agreement before it’s signed. Mediators are not allowed to give legal advice. It is important for each party to have a lawyer that can answer questions for them and ensure that they understand all aspects of the agreement. If issues cannot be worked on during the mediation, couples will need to litigate any remaining issues with attorneys. Lawyers may also have to prepare the formal settlement documents and file certain agreements with the court sothat the agreement is enforceable.