What is Family Law Mediation
Mediation is a form of alternative dispute resolution that is commonly used in family law cases, such as divorce, child custody, and property division matters. It involves a neutral third-party, known as a mediator, who is trained to help parties resolve their conflicts through negotiation and compromise.
The mediation process typically starts with an introductory meeting where the mediator explains the rules and procedures of the process. The mediator then listens to both parties’ perspectives and helps facilitate a dialogue between them. The mediator does not decide who is right or wrong , but rather guides the parties towards finding a mutually acceptable resolution.
Family law mediation is often seen as a less confrontational and less expensive way to resolve disputes than traditional litigation. It allows parties to have more control over the outcome of their case, since they are actively involved in the negotiation process. Additionally, mediation can often be completed in a matter of weeks, whereas litigation can drag on for months or even years.
Some jurisdictions may require parties to participate in mediation before proceeding with a court case. In some cases, the judge may even order mediation if they believe it could help resolve the case.
Advantages of Utilizing Mediation
So why choose mediation for your family law issues? While every case has its unique facts and circumstances, consider the following benefits:
Less Formal: Parties who are used to dealing with lawyers are accustomed to a particular level of formality. Mediation can be a less formal environment, and can occasionally be used outside of the private setting as well, such as in the courthouse.
Cost Effective: Parties can agree to easily divide up fees in the future, whereas a judge will not. Mediation is typically cheaper in the end, even if some prep work is involved in advance; for example, drafting a history of all the assets and debt is often a necessary first step prior to mediation.
Confidential: The mediation process is private. What happens in mediation stays in mediation, without special permission from the parties or the court.
Faster Access: Mediation is a faster process, as it follows a more linear process. A dispute is set for hearing, and sometimes can take months to be resolved. Mediation is a fast way to resolve a dispute that is pending in court. Further, the parties are not bound by court scheduling requirements.
Party Control: The parties have a much more hands on approach to resolving matters, via creative input and agreeing to solutions that fit their needs, which is not always the case in court.
Locating Professional Mediators in Your Locality
While some qualified mediators practice independently, others work primarily for private mediation firms or law firms that offer mediation services. Yet another option is mediators who work for family law courts and related services. For example, Wevorce is a nationally available online divorce service that pairs individuals with qualified mediators.
1. Online Directories
Lawyer directories such as Lawyer.com and Martindale.com maintain searchable directories of local attorneys and mediators.
2. Legal Aid Services
Many legal aid organizations provide low-cost mediation services or pro bono mediation services for individuals who cannot afford the cost. They use local volunteer lawyers and other trained mediators. Legal aid services also include limited-scope divorce services for low-income people who are not able to afford a full-service attorney. With limited scope divorce, you pay for certain tasks, like preparing a divorce complaint, while representing yourself as to other matters, such as in court.
3. Recommendations from Your Local Bar Association
For potential mediators or separate mediators for siblings involving custody issues, contact your local or state bar association’s family law section or domestic relations committee. Bar associations may even have lists of qualified mediators categorized by specialty, like child custody.
Getting professional referrals may be the best way to quickly find information on qualified mediators in your area. It’s important to check credentials before making a selection, but it’s not always easy to do that. (Some states license mediators.) Once you are given a name, ask the mediator how many hours of training and how much experience he or she has in working on cases similar to yours.
How to Prepare for a Mediation
Before a mediation session, families should gather any relevant documents that they may use as a resource during the session. You may consider taking a moment to write down any questions or concerns you may have before going into the session. Also, prior to attending the session, you should consider how you want to approach your family matters. In other words, decide if you want to: (1) settle now; or (2) go to trial. Based on your options, think about what kind of terms you would like to suggest. If it is your first time at mediation, know that many hopeful ideas are often dismissed by the other spouse. As many veteran mediators will tell you, rarely does anyone leave the mediation session with their desired outcomes.
IMPORTANT: You must keep an open mind before and during the session. Neither you nor the mediator has the power to make a judge rule in your favor. This is most often the case in family law matters, so be prepared if your case does not settle at the mediation.
If you have children, you may find it helpful to consult with a child specialist before mediation. A child specialist is a family therapist who can help parents figure out what type of parenting plan is best for them and their children. In situations where one spouse is asking for alimony, a forensic accountant or financial expert may also be beneficial. People who meet with these professionals will have to pay for their services directly, since the opposing party is not obligated to contribute to their services.
The Mediation Process Explained
What may happen during mediation is dependent not only on the facts of your situation and what you and your spouse are looking to have the mediator help you with, but also on the mediating style or philosophy of the individual that you will engage. There are roughly four different styles of mediators.
Very few cases get resolved in the first mediation session. Instead, the first session is an opportunity for spouses to open the lines of communication and to establish a framework for the settlement discussions. The first stage involves a discussion, which is oriented towards the concept of mediation being successful. The mediator will explain the process to you and your spouse. Generally, all parties agree to the process and sign a confidentiality agreement. The mediator will explain his or her role at this point as a neutral party, providing the framework necessary to facilitate communication and help you two reach settlement. The mediator will gather information about the people involved and the issues in the case , and generally ask why the parties chose to pursue mediation and what they hope to gain from it. The parties will have time to speak privately (with and without the other spouse). The next stage is the sharing of information. Many times people come to mediation with a set idea of what the outcome should be. It is important to the mediation process for spouses to better understand their respective viewpoints of the issues. This is not where decisions are made, but where information is shared. The third stage is where discussion comes into play. Your mediator will interact with both you and your spouse to help control the flow of the conversation. A mediator will often be careful to avoid power imbalances and help facilitate a more open line of communication. It is important to note that the mediator can discuss all issues with the parties, but will not give legal advice. In the fourth stage, the mediator will help you and your spouse come to an agreement. The mediator cannot force an outcome, but can help you find a middle ground. Discussion will continue until the mediator believes that a settlement has been reached. Some cases take longer than others and there is no set time limit for the negotiations. Mediators will not pressure spouses into an agreement.
What Happens After a Successful Mediation
When mediation successfully occurs and the parties reach a resolution of their family law issues, they normally enter into a written settlement agreement. Such an agreement includes terms and conditions, including financial aspects as well as non-financial arrangements, which the parties have consented to. That written agreement is then incorporated into a Judgment and signed by a Judge of the Court, making it a binding and enforceable Court Order.
The initial agreement among the parties, however, may or may not incorporate all the financial details necessary, such as the tax ramifications between them or how pension funds or other assets or liabilities are to actually be divided or distributed. Or, the agreement among the parties may address the details, such as the tax consequences, but may be inconsistent with a need for a complete and final property division.
If the latter occurs, a written retainer agreement is needed with the marital attorney to review the written settlement agreement which must be consistent with the need to have a complete and final property division, which the Judge will sign or approve, so there will never again be a financial claim from one spouse against the other in the future. That normally applies especially to pensions, where the husband and/or wife has earned a right to payment in the future once he/she retires or reaches retirement age, so there cannot be a second bite at the apple for payment. The payment of a pension to either spouse creates taxable income to that spouse, so such income must be distributed equitably between the spouses. If the spouses live in Pennsylvania a Qualified Domestic Relations Order must be drafted and signed or approved by a competent Court so that the distant spouse can receive his/her share of the pension, or a retirement account, during the course of the marriage, or after the other, the distant spouse, retires.
Such a non-retirement asset must be appraised or valued, as well as evaluated for the tax consequences, so that the distribution can be fair and equitable.
When is Mediation Not an Option
Situations involving extreme conflict between parties with no room for compromise, or where one party has threatened the other or committed an act of domestic violence are examples of where mediation might not be appropriate. Although in my practice cases sometimes go awry and mediation does not happen, even in a high-conflict situation this should not deter you from seeking to mediate. We are trained to assess this in the intake process. If I sense that there is just no way , I will refuse to mediate. I will not work with anyone if I feel that they are in any danger. In those instances I can refer the parties to someone else who can help them. Abuse and post-separation abuse is ever increasing in our area. We are now seeing that we have to be able to screen people out for their safety, and in response, courts are beginning to require any family law mediator to undergo specialized training to screen for domestic abuse. So, last year I had a 40 hour training session to assess domestic violence in couples.