Unlike the court process, which by its very nature is designed to be adversarial, mediation is designed to be collaborative. This does not mean that parties in mediation will be free from emotions when they negotiate, nor does it mean that they have to like each other, or agree upon most issues. “Amicable” simply means that the parties cannot use the process to lash out at one another with strategical maneuvers. Because the mediator is trained to facilitate negotiations between high conflict couples, the process can be successful and productive, even when the parties’ relationship is volatile. Parties often have a better relationship at the end of mediation than when they began. This is especially beneficial when the parties have children together. Parents who mediate successfully, despite their differences, set an incredible example for their children on how to resolve disputes productively.
A traditional litigated divorce can cost tens of thousands of dollars. Mediation is a fraction of that cost. The majority of mediated cases can be resolved in ten hours or less. The savings is phenomenal. In addition, research has shown that mediated agreements are more likely to be followed, therefore, also saving the cost of contempt or modification proceedings.
Mediation agreements are customized to you and your family. Court orders and traditional Marriage Settlement Agreements do not include provisions for many of the issues that families face, such as how are the parties going to pay for college tuition, wedding or bar mitzvah costs. The parties can raise their specific issues with the mediator and the agreement will be tailor made just for them. Mediated agreements can also provide creative solutions that would not be considered in traditional litigation, allowing both parties’ needs to be met.
The mediation process is discreet. There is no court reporter at the mediation session and everything said in the session is confidential. The mediator cannot be called as a witness if the case eventually goes to court. This protects the parties and makes them comfortable to be open and forthright during sessions.
In a traditional litigation case, the attorneys are at the center of negotiations and the client’s interests can get lost. In mediation, the clients are at the center of negotiations. Although the clients are encouraged to seek legal advice, they are the ones making the negotiating decisions. In addition, the clients, not the court or the attorneys set the pace of the process.
The majority of divorce mediations take place in what are called “parties only” sessions. In this type of session, the parties meet with the mediator without their attorneys present. The attorneys are used as counselors or coaches in between sessions.
The attorneys do not negotiate for the parties or participate in mediation and the parties gather the necessary information to resolve the case. The parties agree that they will not allow their attorneys to file any motions, petitions etc. while they are in the mediation process.
Each party has an initial introductory session with the mediator. In this individual introductory session they will learn more about the process, gain a comfort level with the mediator, discuss their concerns and goals for the process, and obtain homework that they will need to complete prior to the first joint session.
After the individual introductory sessions are completed, the mediator will schedule the parties to come in for their first joint session. Joint sessions are scheduled for two hour blocks of time. At the initial joint session, the parties shall determine what issues they need to resolve in mediation. Any immediate issues shall be addressed and the parties shall prioritize the other issues. Sessions shall be scheduled every other week, which allows parties to have time to gather any needed information, speak with their attorneys, and to make decisions from a calm intellectual place.
After each session, the mediator shall send out a Mediation Memo to both the parties and their attorneys. This Memo shall summarize where the parties are at in negotiations, anything that needs to be discussed with their attorneys, any homework that needs to be done before the next session, and any issues that have been resolved. This Memo is not binding, but serves as a reference point for parties and attorneys. Once the issues contained in the Memo are complete, it will be used to create the Marriage Settlement Agreement.
For clients that do not feel comfortable negotiating by themselves and want the immediate feedback of their lawyer, attorney present sessions are available.
Sometimes clients begin with the traditional “parties only” sessions, but then find that because of the more complex legal issues in their case, that it makes sense to have their attorneys present. Some attorneys contact the mediator when they are close to settlement, but need some help to finalize the agreement.
Mediation sessions for this purpose have the advantage over settlement conciliations with a judge for the mediator will never have the power to make a decision in the case. For this reason, attorneys and parties can be more transparent with the mediator in individual caucus sessions. This allows the mediator to be much more effective at obtaining an agreement.
Contact us to learn more about a cost effective divorce process that is respectful of both your family and your ability to make your own decisions.