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People starting a divorce process sometimes call me asking whether they should mediate their divorce, or litigate, as if this were an either-or proposition with irrevocable consequences. In reality, every divorce requires both formal legal procedures as well as some kind of settlement negotiations. In Minnesota, even if you prefer to litigate and leave every decision up to the judge, the rules require that before the Court will decide your case, parties must attempt resolution through some form of Alternative Dispute Resolution, of which mediation is still the most common.  Conversely, there is no way to finalize your divorce through mediation alone. Even if you reach a tentative agreement in mediation, this agreement must be formalized in a written stipulation, signed by both parties and their attorneys, and ultimately approved by the Court.  This signed stipulation — not your verbal agreements from mediation sessions — is what becomes the enforceable terms of your divorce, and should be prepared or at least reviewed and revised by your lawyer before you sign. I generally do not recommend that people start out the divorce process in mediation, for a couple of reasons:
A couple of other things to always be aware of with mediation:
Notwithstanding all of the above, mediation can often be the process that helps break an impasse and result in a reasonable settlement of one’s case. But for mediation to work, both parties must be prepared to compromise. If you approach mediation with the attitude that it will be an opportunity to convince the other party to do things your way, mediation will likely fail. That said, be careful not to concede too much. A lawyer can give you appreciate where the line is between generous cooperation and foolish capitulation. Footnotes:
“EFFECT OF MEDIATED SETTLEMENT AGREEMENT. Subdivision 1. General. The effect of a mediated settlement agreement shall be determined under principles of law applicable to contract. A mediated settlement agreement is not binding unless: (1) it contains a provision stating that it is binding and a provision stating substantially that the parties were advised in writing that (a) the mediator has no duty to protect their interests or provide them with information about their legal rights; (b) signing a mediated settlement agreement may adversely affect their legal rights; and (c) they should consult an attorney before signing a mediated settlement agreement if they are uncertain of their rights; or (2) the parties were otherwise advised of the conditions in clause (1)."
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