What is Mediation?
Mediation in a divorce case is a voluntary process in which the spouses (who are in disagreement over one or more issues in their case) work with a neutral third-party (called a “mediator”) to try to resolve the dispute. The intention is to help the spouses develop a satisfactory and lasting agreement which will enable them to avoid having to go to court to get their dispute resolved.
What Is The Mediator’s Role?
The mediator’s role is to:
- Facilitate the spouses’ communication with one another
- Identify issues
- Ask questions
- Make observations
- Suggest options
- Help the spouses each express his/her needs, goals, and feelings
- Check the workability of proposed solutions
- Prepare written summaries of discussions
- Prepare agreements
- Prepare pleadings (if applicable)
The mediator cannot determine the result or impose choices on either spouse. The mediator must remain absolutely impartial and may not advocate the interests of one spouse over another. As a neutral, the mediator may from time to time express an opinion to a spouse regarding the viability of any position taken in order to assist in moving the matter towards resolution. However, the mediator may not take sides or give advice as to what is in a spouse’s best interest.
Are Attorneys Allowed At Mediation?
Yes. A spouse may bring his/her attorney to mediation (or have the attorney on stand-by via phone if the attorney is not going to be physically present). However, attorneys are not required.
What Does Mediation Look Like?
Often the mediator will start the process with both spouses together in the same room for a joint meeting and then later separate the spouses into separate rooms where more private conversations can take place. The mediator may bring the spouses together (or keep them apart in separate rooms) multiple times, depending on the particular dynamics of the situation. Some mediations are brief (a few hours); others may take place over the course of several different days.
Is Mediation A Good Idea?
Mediation can be a useful way to help spouses reach agreements, avoid litigation, and move their divorce case along towards conclusion. For mediation to work best, both spouses should have a sincere interest in trying to avoid litigation. Even when one spouse enters into mediation with no intention of reaching an agreement, sometimes very skilled mediators are able to help bring that spouse around to a point of cooperation. Mediation is most successful when both spouses have an honest desire to try to be cooperative with each other.
Downside to mediation
Because mediators must remain impartial, they are not allowed to:
- Advise either spouse as to what is in a particular spouse’s best interest
- Advise what a spouse “should” negotiate for
- Advise what a spouse “should” agree to
A mediator’s job is to get the spouses to reach an agreement – not necessarily to reach the best agreement possible. Sometimes this results in the proverbial “splitting the baby in half”. So, a spouse who participates in mediation without having his or her own attorney involved risks entering into an agreement which may not reflect his or her best interest. For this reason, it is important for people going through a divorce to have an attorney on their side (even at mediation) who will tell them the truth about their situation and help them go into mediation with realistic expectations.
Consult with an attorney beforehand
Even if a spouse does not want his/her attorney to participate directly in a mediation, it is often a very good idea to meet with an attorney before mediation in order for that spouse to:
- Understand what his/her rights are with respect to all relevant issues (like child custody, child support, property division, spousal support, etc.)
- Understand what his/her obligations are under the law
- Know what to expect in terms of the process
- Realistically evaluate the strengths and weaknesses of each spouse’s position on each disputed issue (including evidence in support of positions and which side the law is likely to favor)
- Develop a strategy for negotiation
- Determine a walk-away point (i.e., identify ahead of time when that spouse should walk away from mediation – at least for the day – to avoid agreeing to something in an effort to “get it over with”).
Knowing the strengths and weaknesses of each spouse’s side and understanding which spouse the law is likely to favor on the disputed issues is critical to determining whether an agreement (or proposed agreement) reached at mediation is “a good deal”. This is where working with an experienced attorney can make a huge difference.
For more information about Mediation, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (707) 900-4500 today.
The ideas discussed in this article are for general informational purposes only and should not be construed as legal advice. The reader should consult with an attorney to determine what is in the reader’s own best interest.
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