Mediation STAFF PICK

Elizabeth Christen Doak

Written by

Divorce / Separation Lawyer

Contributor Level 7

Posted over 3 years ago. 0 helpful votes

Email

1

What is Mediation?

First, it is important to understand what mediation is: Mediation is an out of court process that attempts to resolve any issues between the parties. You control the mediation, not the attorneys, and not the mediator. A mediator is a neutral party that passes offers between the parties. He may or may not be an attorney, but even if he knows the law, he may not give any legal advice to either party. He is not an arbitrator or a judge, and anything said during the mediation will be kept confidential. If your case involves domestic violence, the mediator will have trained in domestic violence mediation. Neither party may use anything said during the mediation at trial, nor can anyone call the mediator as a witness. If the mediation ends early or does not end in an agreement, you have the right to go to trial and resolve the dispute in front of a judge.

2

How does Mediation work?

Next, you need to know how mediation works. Mediation is different each time, but most mediation follows the same pattern. First, all parties and their attorneys will meet in the same room. You, your spouse, the attorneys, and the mediator will need to sign a document agreeing to keep anything said in mediation confidential before the mediation can begin. First, the mediator will make his opening statements. He will probably introduce himself, talk about the confidentiality of the process, and talk about how he will run the mediation. Next, he might ask for opening statements from the parties.

3

What is the goal of mediation?

The goal of mediation is to make a deal, and not to convince the mediator or the other side that you are right and your spouse is wrong. With that in mind, first the petitioner (the person who filed for the divorce) will have the chance to give the mediator the background of the case. If you are the petitioner, then your attorney will tell the mediator when you were married, how many kids you have, when you separated, and he may mention why you and your spouse are arguing. If you are the respondent, then your attorney will make a short opening statement after the petitioner's remarks. He may or may not address the petitioner's opening remarks, and if he does not, remember that the mediator is not a judge and it does not matter if he believes the other party. You are at mediation to make a deal.

4

How does the mediation progress?

During the opening statements, you may hear the other party or his attorney say things that you do not agree with. If you disagree, make sure to take notes, but do not say anything and try not to physically react (do not roll your eyes, sigh, or indicate that you disagree). This will start the mediation off on the wrong note, and it will not help your case. Mediation is an amicable process, and the way to avoid fighting in front of a judge. If you indicate that you are not willing to come to an agreement, then mediation is a waste of everyone's time. After the opening statements, the mediator will meet privately with the parties in separate rooms, usually starting with the petitioner and his attorney. If there is an offer on the table, the mediator may choose to meet first with the party who has to respond to the offer in order to get the ball rolling.

5

What else happens?

In your private meeting with the mediator, you and your attorney will make or respond to an offer, and the mediator will communicate your offer to your spouse in their private meeting. The mediator must keep anything you say to him confidential unless you specifically state that he can share information. The mediator may meet privately with each side numerous times in order to close the deal. Mediation usually lasts four hours, but it can run all day, so be aware that these meetings will take time. At some point, you, your spouse, or the mediator may choose to end the mediation, which means that your case progresses to the trial phase. Even if the mediation ends, it has not necessarily failed. You and your spouse can still make a settlement agreement after the mediation. In fact, mediation is often a great way to find out what your spouse is really interested in getting out of the divorce and may clear up any confusion on your part.

6

What happens if we do (or don't) agree?

At the end of the mediation, you will sign a document saying that you attended mediation, that it did not result in an agreement, and that you agree to keep anything said during the mediation confidential. If you have a final agreement, then the mediator will take some time to draft the agreement that you will both sign. This agreement is a contract and you can sue on the contract, as you would in any other divorce case. Even if you have a settlement agreement at the end of the mediation, you are still required to keep anything said during the mediation confidential. By going to mediation, you do not lose any right to go to court in the future to alter child custody or child support. If the mediation ends without an agreement, then your case will proceed to trial. You should not be afraid of this development. Even if it feels scary or if you are worried about airing your "dirty laundry", trials are routine for your attorney and the court.

7

Will Trial cost more?

If the case goes to trial, then your attorney will make the best presentation of your side to the judge, and he will make a ruling that divides the assets equitably and that provides for the "best interest" of your children. In terms of trial costs, be aware that if your attorney has not requested documents like bank statements from the opposing party he will do so before the case goes to trial, and requesting these documents can be costly. Trial preparation is also the most expensive phase of your representation, and the costs can increase exponentially as our team prepares the case. Going to trial will also take more time, as there is a mandatory waiting period before you can file certain documents. On the positive side, if your spouse is drawing out your case arbitrarily, then the court will impose a mandatory time line that your case will follow. Despite the increased cost, trial is a viable option for every case, and one that you should prepare for.

8

How do I prepare for mediation?

How can you prepare for mediation? Make sure to get a full night's sleep before the mediation and eat a good breakfast. If you are tired or are hungry, you may be inclined to end the mediation before the dispute is resolved or agree to things that you would not accept otherwise. If you get to the mediation early, make sure to be civil to the other side, but avoid talking to them if you can. It is best to enter the mediation with both parties disengaged from their emotions and ready to make a deal. If you say or do anything to anger your spouse before the mediation, it is possible that you will not have a successful mediation. Finally, and most importantly, keep an open mind about the process. Mediation is unique because it allows you to create a solution that the court cannot. If there is a way to get the deal done that you think is outside the box, feel free to mention it to your attorney. In mediation, if you and your spouse agree, you can make a contract.

9

What else can I do to prepare?

For your own preparation, think about what you would and would not accept in mediation. What is the minimum that you would accept to get the mediation done? What would be the best-case scenario if you went to court? What would be the worst-case scenario if you went to court? Make sure to consider that going to trial will cost you additional attorney's fees, as well as extra filing fees. Also, consider what you really want, and not necessarily what you are entitled to get in court. Your mediation will move forward more quickly if you think about what you really want-a divorce.

10

Conclusion

Mediation is a great option that can resolve your divorce as amicably as possible. You and your spouse can create a mutually satisfying agreement and save yourselves the stress and cost of going to court. Additionally, you can create your own solution to the division of your marital assets and child custody. If your attorney has not mentioned mediation as a way to resolve your case, make sure to ask him if it is an option. If you have any other questions regarding divorce or mediation, check out atlantadivorceattorneyblog.com.

Additional Resources

atlantadivorceattorneyblog.com

Atlanta Divorce Attorney Blog

Rate this guide

Related Questions

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

27,808 answers this week

3,102 attorneys answering