Mediation is a meeting between both of the parties of the divorce or custody case. The parties come together to talk and attempt to make agreements to resolve the divorce and what to do next, with the help of a neutral third party called a mediator. Mediation is not counseling; mediation is a settlement attempt held by the mediator in an effort to walk through the issues of the case and identify possible agreements or opportunities for compromise.
Mediators are trained to listen but also instruct and advise about how settlement may be better than the risk and cost of going to trial. Above all else, mediation is a negotiation as to the terms of the case. Mediation, however, is nonbinding unless both parties want to sign a final agreement (or a temporary agreement pending final resolution) with their attorney. Attorneys usually do not attend mediation but can. As to how the mediation session is held, the proceed varies from mediator to mediator but most are open to doing a face to face session or a caucus-style (parties are in separate rooms during mediation) session depending on the wishes of the parties.
Mediation is a private and confidential way to sit down and talk out the issues, knowing that what is said in mediation cannot later be used in Court. The parties get to choose the mediator they want to work with. Parties may search through the roster of mediators available, or rely on the advice of counsel regarding which mediator to choose.
The amount of time that mediation will take is different for each situation. If mediation is necessary to resolve multiple issues, additional sessions may be needed. A typical mediation session lasts about two hours, however it is up to the couple to decide what topics need discussing, when the session is finished, and whether further sessions are needed. Child Custody is an issue that sometimes cannot be resolved by mediation, and in those cases mediation may only be able to reach a partial agreement about issues except for child custody.
Even if an agreement is not the final outcome from mediation, many people feel much calmer and have a better understanding of not only the other person’s viewpoint, but also of where the proceedings are headed to next.
If an agreement is reached, a final mediated agreement that both parties are willing to sign will then be typed up by the mediator or an attorney, and presented to a judge. Most likely after reading the agreement, the judge will accept it. After the judge authorizes the agreement it becomes an official legally-binding document, where if one party breaks the agreement the other party can return to court to have it enforced.
Mediation is a non-threatening, supportive way to open up communication and allow parties to come to an agreement without the time, expense, and acrimony of a long drawn out court battle. While it does not always “fix” a case, Mediation is an important tool which can be very effective depending on the issues and willingness of the both parties to ‘come to the bargaining table.’