A divorce is like any other civil dispute, and when I say civil, I simply mean as opposed to criminal. There aren’t many things about most divorces that are civil, in the common use of that word. Like other civil court disputes, divorces are often ripe for an alternative dispute resolution process such as mediation. And mediations are quite popular and quite common in divorces.
A mediation is simply an out-of-court process whereby a third-party independent neutral (the mediator) helps the parties negotiate a compromise settlement of their dispute.
This enables the parties to save the cost and time associated with the trial process and allows them to have some say in the outcome, thus avoiding the uncertainty of trial. In fact, the parties may choose to go to mediation even before a divorce is filed.
The mediator may be chosen by the parties or appointed by the court.
If ordered by the court, the parties are required to attend the first mediation session. However, mediation is non-binding. In other words, the mediator makes no decision about the case and cannot impose a settlement on the parties. If and only if the parties agree to a settlement is the matter resolved.
The mediation can address any or all of the issues in dispute between the parties. The process is confidential, and anything said or shared at the mediation or with the mediator is confidential.
That doesn’t mean that facts learned or revealed at the mediation cannot later become part of the divorce proceeding but they must be verified or obtained through some other means.
Generally, only the parties and their attorneys are present at the mediation, though others necessary to the process may attend some or all of the sessions with the agreement of all included and the mediator.
Even though the parties may agree on the ultimate resolution, the court must still approve it (in most situations) and enter an order addressing the issues made the subject of any agreement (in every case where divorce is the result).
So, even though the mediation is confidential, the terms of the ultimate divorce will generally become a part of the public record.
The mediation may last for many hours and can take place over many days. The parties split the cost of the mediator’s fee, though the parties may agree to address it in some other fashion or the court may address how the fee is paid.
At the mediation, the parties are usually separated. The mediator takes turns meeting with the parties and carries offers back and forth between them.
The mediator may offer his or her thoughts and suggestions on the issues, the parties’ positions and arguments, and what might happen if the case is not resolved by agreement.
Mediations are popular in divorce proceedings because they often work, saving the parties the cost, time, and uncertainty of a trial. However, one should not go to a mediation unrepresented. The mediator cannot give legal or any other advice and must remain neutral. It’s just as important to have an informed and experienced divorce attorney in the negotiations which take place at mediation as it is to have one at trial.