Mediation: The most common form of Alternative Dispute Resolution (ADR)
Mediation is a form of guided dialogue between the parties, with the mediator keeping the discussion civil and focused, guided by the "Rules of Mediation." Most importantly, the mediation lawyer is not the decision-maker … the parties are.
Mediation services have several advantages over litigation or other forms of ADR:
- Mediation is the least expensive form of formal dispute resolution
- Mediation is the least expensive form of formal dispute resolution;
- Child support amounts can be readily established and reviewed;
- Mediation is usually the quickest way to resolve your dispute;
- You determine the outcome, not the mediation lawyer or other third party;
- The agreement is not effective until you sign the agreement;
- You can terminate the mediation at anytime;
- Mediation can help save a relationship, or salvage the ability to communicate with your soon-to-be-former partner, whereas litigation creates so much bitterness that it makes future relationships much more difficult;
- The mediation process focuses on the future, not on blaming the other party for his/her past conduct;
- Mediation is confidential; whatever is produced or said during mediation cannot be used against the other party in court, except for the final mediation agreement;
- You can use mediation services while retaining your dignity and self-respect; you have crafted your own solution, rather than being dragged through the mud and having someone else (a judge) tell you what to do;
- Studies show that the other side is more likely to comply with an agreement he or she has helped create through mediation, thereby reducing the stress and expense of post-judgment conflict;
- You can write an agreement with much more creative solutions than a court can or will. Specific to Family Law Mediation, child visitation/access will be better for all. To paraphrase one judge, ‘Why would you trust a stranger (the judge) to make your most important decisions for you?’
- Child support amounts can be readily established and reviewed.
Mediation works by getting the parties to identify his or her interest, and moving them away from arguing about his/her position. For example, each party's position may be that he/she wants the orange, but in reality, one's interest may be in the juice for drinking, and the other in the rind for cooking. Once these interests are identified, the parties can each have what they need, and resolve the dispute!
Mediation also works because the mediator is neutral and non-judgmental. The parties have nothing to fear from the mediator (as opposed to the opposing lawyer). The mediator will guide the parties through the issues in a civilized, non-threatening setting.
Attorneys are trained to spot issues and anticipate potential problems. They also know what a court might or might not do, what the court would mostly likely allow and not allow, and any new developments in the law. That is one reason they can make effective mediators- by issues spotting and helping to parties develop an agreement that will be acceptable to the Court. After 25 years of helping to resolve parties’ problems, Bob knows how to bring issues to the table the parties may not have seen, and help find solutions they may not have thought.
The mediator can give neutral legal facts; he can use his legal knowledge to help the parties, as long as his opinions remain neutral. But the mediator cannot give legal advice to the parties if it might advantage one party over the other. Bob and other mediation lawyers strongly suggest the parties consult with their own attorneys before, during and after the mediation, so that they can get personalized legal advice which the mediator cannot answer.
Except in emergency mediations, the clients are asked to fill out a confidential mediation form, so that Bob has a good idea of what each party is seeking.
For the first mediation session, Bob meets with all of the parties, and the parties’ attorneys if they attend the mediation (that is decided before the first session). In high conflict cases, at the first meeting, the mediation process and Ground Rules for Mediation maybe discussed; and the parties maybe asked what their goals are for the mediation, In cases where the parties are able to agree more and have less conflict, the first session may begin immediately with discussion of the issues.
In mediation, Bob asks questions to get the parties talking to one another. If they can't talk civilly to one another, then they carry on a dialogue by speaking only to him. While one is talking the other can take notes, bite his/her lip, or whatever, but he/she should not interrupt. In mediation, listening is as important as speaking.
Usually the parties start together around a table, with the discussion guided by the mediator. Although a separate “break out” room is available for the mediator to meet separately with the parties, usually family mediation is conducted with everyone together. Particularly if there has to be future communication between the parties (e.g. they have children) it is important for them to work through the issues together. However, each case is different, and Bob uses his considerable experience to tailor each case so that each session will be most productive.
Nothing is final in mediation until the mediated agreement is signed. It is important that the parties have time to reflect on what has been agreed to, so that they feel comfortable with the final product.
Sometimes Bob will draft interim or partial agreements e.g. interim parenting agreements, terms for transfer or sale of the marital home, but usually he drafts only one agreement, after all of the issues have been resolved. If the parties want, the agreement can include the legal “boilerplate” so that it can be easily approved by the court. Bob will suggest that each party take the agreement to separate lawyers for review, but that is not required.
Once the agreement is signed, it becomes a binding contract and is enforceable by the court. When you get divorced, it will usually become part of your divorce decree.
No, but it is highly recommended that you visit a lawyer before the first mediation session so that you know your rights and have some basic knowledge of the law. Bob can recommend “mediation friendly” lawyers who will give you helpful advice but who are not “sharks” who will make you spend a lot of money stirring up unnecessary issues. Also, your attorney may be able to answer questions that the mediator cannot (because the mediator cannot give legal advice that helps one party at the expense of the other.) It is also recommended that you have your own lawyer review the agreement at the end of the mediation. The expense of this review by a mediation friendly attorney is not great, but is an important part of the process. If the reviewing lawyer recommends any changes, he will convey them to the other side’s attorney and/or to the mediator. When full agreement is reached, the agreement is signed and it becomes a legally enforceable contract.
In general, most divorce cases take one to two three-hour session(s) children issues, e.g. legal custody and time-with-the-kids arrangements (“physical custody”), and one or two other sessions for dealing with financial (e.g. alimony, child support, retirement and pension assets) and property (e.g. house, car) matters. Where the parties have essentially agreed on most issues, Bob has concluded the mediation in as short as 45 minutes. Where the parties could not agree to the time of day coming in, he has worked with couples for eight to ten sessions, patiently working with them until they were satisfied with the outcome. The average number of sessions for divorce mediation services is two to three. Sessions can be spaced as you desire. You control the schedule, so they can be days or weeks apart.
- The more you and your spouse agree upon outside of the mediation process, the more quickly you and the mediator can proceed with the items that are most in dispute and for which you most need the mediator’s services. But some parties cannot effectively communicate about the difficult issues of separation and divorce, and it is perfectly fine that nothing may be agreed to before mediation.
- Be prepared. Fill out the questionnaires you will get from the mediator’s office and bring the requested documents to the mediation.
- Stick with the Ground Rules for Mediation. It really helps the mediation go more smoothly.
No, the one year period between separation and divorce based on voluntary separation starts on the later date of when you and your spouse (a) are physically separated and (b) have ceased having sexual relations. The one year separation period can start before or after the mediated agreement is signed—having a signed agreement has no legal bearing on when the clock on the legal separation starts.
A pre-nuptial agreement (also known as an “ante-nuptial agreement”) is an agreement written before the parties are married, and a post-nuptial agreement is written after the marriage. Both require full disclosure of assets before the agreement is signed. Bob is experienced in working with parties through both types of agreements.
Mediating a pre-nuptial or post-nuptial agreement makes perfect sense. You are retaining a neutral party to help you deal with potentially sensitive topics. You need someone who is used to working constructively with parties to craft agreeable solutions.
Once the pre-nuptial or post-nuptial agreement is drafted, to make it more enforceable if it was ever needed, Bob suggests that you have it reviewed by your own attorney before signing.