Some people think they have to choose between mediation and having an attorney. But you don’t! Most of the time, here at Modern law we suggest and attend mediation with our clients. Mediation is simply a formal process of negotiation. Family law mediation is often required and often successful at resolving issues. It is a process where a neutral third party, the mediator, holds a formal process of negotiation. It serves as a place and time where everyone knows what they are gathered to do- discuss and decide on the issues related to your case.
1. Initial Preparation
- Mediator Selection: Who we select as our chosen mediator (if we are in private mediation) is very important. Different mediators are strong in different areas of practice or may be more sympathetic to certain types of issues or clients. Different mediators have different styles and different success rates. Talk to your lawyer about your chosen mediator and what to expect.
- Pre-Mediation Preparation: Preparing for mediation is different from preparing for trial. We are not preparing to present our case for someone to decide who wins. We are preparing for a negotiation. We are preparing with a “what can we live with” attitude instead of a “how can I get everything I want”. We want to think through the details of your positions. Since it is likely you may settle, we don’t want to leave anything important out of the agreement. Make a list of every issue you want addressed.
2. Mediation Session Structure
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Introduction:
- Mediator’s Role: As explained earlier, mediators have different roles. Some are perfectly neutral and help you find whatever agreement works for you, regardless of the law. Most do not. Most have their own ideas about what is fair or what a judge will do. They will likely tell you what to expect if you go to court. They may be familiar with your judge. They will likely tell you how your position compares to what the law says or what a judge is likely to do.
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- Ground Rules: Mediation is confidential! The mediator does not report to the judge. There are no notes from mediation about what offers are made. The only official document or record that may come out of mediation will be any agreements reached between you and the opposing party.
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Initial Meeting:
- Individual Perspectives: Mediation begins with the mediator speaking with each side separately (unless they do a brief opening with everyone together). These can be long initial meetings. They can take up to an hour. You may be going through the details of your background and your positions and the mediator may present an opening offer after meeting with both parties.
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- The mediation memo has already been provided in advance to the mediator so they understand some of the background and issues before we begin.
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- Exploration of Solutions: The mediator facilitates discussions on possible solutions and helps both parties explore options that might be acceptable to everyone. You do not have to agree to anything. It’s important you make sure the agreements and proposals are what you want or what you can live with prior to any agreements.
3. Private Rooms
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Individual Meetings:
- Confidential Talks: The mediator may meet with each party separately in private rooms to discuss their positions and concerns in more detail. This can be done in person or via zoom or teams. There are pros and cons to both options but they can both be very successful.
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- Negotiation: The mediator may use these private meetings to explore possible compromises and assess each party’s willingness to negotiate.
4. Negotiation and Agreement
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Negotiation Process:
- You do not need to agree on all issues for mediation to be successful. Any agreements reached on any issues allow for us to focus on the remaining issues to litigate. It also gives us a great deal of information about the other sides position. We often learn more in mediation than we do in discovery. You also have the benefit of knowing how one professional feels about your case (the mediator). However, understand that mediators and judges do not always agree. It is okay to reject the opinion of the mediator and decide to go to trial.
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Drafting an Agreement:
- For any agreements that are reached, a rule 69 agreement will be put together. This binding agreement will be VERY difficult to “get out of” if you change your mind. DO NOT SIGN ANY AGREEMENTS that you are unsure of.
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- This is a very common scenario and one that attorneys absolutely hate. It puts your case in jeopardy and undermines your credibility and ours if you enter into an agreement and then change your mind.
5. Post-Mediation
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Implementation:
- If agreements on all issues are reached, then one side is typically tasked with writing the final documents or the consent decree. The consent decree will be drafted and exchanged between the parties. This process can take a long time! If you are in a hurry to be divorced quickly, consider building in deadlines to your final binding mediation agreement.
Mediation is a powerful tool with many nuances and twists and turns. It can be expensive but is MUCH LESS expensive in trial. Even if you find it “unsuccessful” in resolving all issues, I hope that some can be resolved. I also encourage you to use this time as a discovery tool to learn information about the other sides position and get clarity on the positions you have taken. Try to go in with an open mind. Oftentimes, there are more than one way to successfully achieve a desired outcome.
