Mediation is a process in which a neutral third party meets with you both, facilitating conversations to help you settle all issues in your divorce: custody, parenting time, child support, spousal support, property and debt division and taxes. The mediator helps you stay calm and rational and ensures that all topics necessary for divorce resolution are discussed. By mediating from the beginning of the case, preferably before either of you files in court, you avoid the delays, excessive legal bills, and trauma that result from the traditional adversarial court process. Most importantly, you protect your children from the turmoil of seeing their parents fight it out in court.
Mediation works even if you are very angry or hurt, even if you can’t talk with each other very well, as long as you are both willing to try, willing to be open to the possibility of finding mutual resolutions that will work for you and your family.
1. Mediation Makes More Sense (and Cents) than Litigation.
Most filed divorce cases, more than 95%, settle, so it makes sense to start out in settlement discussions. With early mediation, from the first session, you discuss resolutions, with the mediator guiding your discussions, helping you stay focused and rational to identify options and find solutions. You talk directly with each other and work together to get the information you need for wise decision-making and to reach resolutions you both can truly live with. You are both “given the floor” and the mediator ensures each of you are heard and understood and that the discussions proceed respectfully and productively.
With litigation, the first two to three months are spent with lawyers filing motions in court and submitting “Discovery” to the other side.
Motions are requests to the court and typically ask the judge to decide issues of temporary child support and temporary parenting plans, as well as how to deal with finances while the divorce is pending (each side submits a brief explaining why they are right, the lawyers then fight for their side in court, and the judge rules). You are paying your attorneys to write and respond to these motions and for their time in court. The results of these motions will be temporary orders, so there will still be fighting to determine the final court order or final settlement.
Discovery is the process of gathering any information that could possibly be relevant to your divorce, and often attorneys have templates they use, which they send out in almost every case, not necessarily tailored for your specific needs, sometimes 20 to 30 pages long. You, of course, also pay your attorneys for creating and responding to Discovery requests and for reviewing all documents exchanged. Plus, during these months, there is usually little to no discussion of settlement, and you and your spouse are often counselled not to talk to each other about substantive issues, but rather to talk only to the attorneys.
Mediation also requires full disclosure of all information, but you exchange only the information you actually need for knowing decision-making. From the beginning, you discuss everything together, including this information exchange, but also how to handle finances and parenting during mediation and upon divorce; together you will determine how to meet your needs and the needs of your children in a way that works for all of you. Every moment is spent in direct communication with each other, for the purpose of moving you forward efficiently and effectively.
2. You Are In Control of All Decisions, including whether to use attorneys and other professionals.
One of the main purposes of mediation is self-determination. You are in control of how the process will work, what information is discussed and exchanged, and what decisions are made.
In addition, you get to decide if you want attorneys involved and if so, how much or how little to use those attorneys. Some mediation clients do not use attorneys, some use them only as consultants, to provide negotiation coaching and advice between sessions and to look the agreement over before signing, and some people use attorneys to attend sessions with them to help them negotiate. Usually, mediators have attorneys they can refer you to, attorneys the mediator trusts, who are trained in helping mediation clients. These attorneys understand that if they are referred for mediation, their role is different – their role is not to take over the case and win a war, their role is to be counselor and advisor, to help you reach a settlement that is in your best interest and your family’s best interest. Attorneys in this role, naturally, spend much less time on your case than if they litigated it, so their fee is far less. Mediators also can refer you to financial advisors and divorce or parenting coaches as necessary.
So, you do not have to choose between mediating or having professionals help you, you can have it all.
3. Mediation Saves You Time, Saves You Money and Is Less Stressful.
Many people who have never been involved in a lawsuit think you get your day in court to tell your story, and then the judge issues a decision. That is just not how it works. Because most cases settle, you will likely never get in front of a judge! Beyond that, even if you do have a trial, you won’t really get to tell your story unfettered, because trials are conducted by attorneys asking witnesses questions, not by witnesses providing long narratives. The reality is that the path to trial is long, stressful, adversarial, very expensive and rarely leads to satisfying results.
The purpose of mediation is to get you talking about how to settle every issue right away, so the process is usually much faster, much less expensive, much less stressful and overall much more satisfying than litigation.
Litigation. This is the traditional process, where each spouse finds a lawyer and you fight it out in court. Opposing attorneys look for ways to weaken your spouse and instruct you not to talk with each other about any substantive decision-making but instead, to talk through attorneys. Most often, a judge will send you to late-stage mediation (defined below) after many months of fighting.
Early-Stage Mediation. Here, you find a mediator together and start the process early, before positions and feelings harden. Settlement discussions begin immediately, with the mediator guiding the conversations, and you talk directly with each other, resulting in a much shorter and more peaceful overall process. Each of you may have an attorney, but the attorneys have a very different role; instead of taking over the case and going to war, they become your counselors and advisors, with the goal of helping you settle all issues using mediation.
Discovery – Attorneys often send to the other party 20-30 pages of questions and request for production of documents on any subject that may be relevant to any divorce proceeding (not necessarily specific to your case). Attorneys may also schedule Depositions. Discovery can continue until trial but usually has earlier deadlines. Attorneys and parties spend many, many hours gathering and reviewing documents, determining what to submit and how to answer questions. Parties, of course, pay the attorneys for all hours expended. In contrast, early stage mediation requires voluntary disclosure of the specific information needed to make informed decisions in your case, and both spouses sign documents attesting that they have fully disclosed all information.
Ex Parté – Ex Parté generally means that only one party must be present; ex parté orders are orders granted on the request of and for the benefit of one party. Parties can file to request such orders at any time, but some attorneys file for them immediately. In contrast, the mediation process focuses on agreements that benefit both parties.
Mediator Phone Screening. Mediator talks with each party to ask more personal questions about the parties’ relationship and how they communicate with each other, to make sure mediation is appropriate and to help the mediator design the process to be most effective for the parties.
Mediation Conclusion. Average for mediation without minor children is 4-5 sessions. Average for mediation with minor children is 5-6 sessions.
Settlement Agreement Binding. A signed agreement is legally binding, and parties may begin parenting plan, sharing of children’s expenses, child support, spousal support, and property and debt division as stated in the agreement; Clients often feel divorced upon signing.
Late-Stage Mediation. If the case does not settle, the next step is trial. Typically, late-stage mediation is all in one day, sometimes going into the evening, with lots of pressure to settle that day, which may lead to buyer’s remorse the next day! Parties are often in separate rooms with their attorneys, and mediator shuttles back and forth between rooms, meaning that the parties are not working together to resolve.
Joint Filing. New Court rule allows parties with settlement agreements to file jointly, using non-adversarial language. Parties need to convert settlement agreement into a Consent Judgment of Divorce, and this document acts as Complaint, Answer, and Summons. The only court proceeding is the final court hearing to have a judge sign the Judgment.
Judgment of Divorce. All parties must wait at least 60 days after filing before Court can enter Judgment of Divorce. There is a 6- month waiting period for parties with minor children, but most judges will waive for parties who have settled all issues, allowing judgment entry any time after 60 days.
by Lisa Taylor