What Is Mediation?
Mediation is a process by which you sit down to try to resolve your disputes in a divorce or other family court proceeding. In some cases, mediation is voluntary meaning that the parties agree to attend mediation to attempt to come to agreements instead of proceeding with or attending trial. In other cases, mediation is court-ordered, meaning that before the court will allow the parties to proceed with trial, they are required to spend a couple of hours in mediation, discussing and attempting to resolve their dispute or disagreement. Either way, mediation should be viewed as an opportunity to resolve disagreements, come together to solve problems and find solutions. Depending on the needs of a case, mediation may be needed and effective at any number of occasions during the case, for example, in some cases, mediation is used at the beginning of a case to address temporary needs, financial support, a temporary parenting plan and separation of the parties. In other cases, mediation is used to come up with a permanent parenting plan or determine a final asset distribution or division. Either way, mediation should be viewed as an opportunity for the family to retain control of the outcome of their case, come together to solve problems and hopefully, avoid a contentious divorce or other family court proceeding where often, both parties walk away unhappy with the rulings or decisions of the court.
How Does Mediation occur?
In many situations, the parties need to make a decision as to whether they want to proceed with their attorneys in attendance or without attorneys present. There are pros and cons to each option, but what do they mean?
1. Mediation Without Attorneys Present: When mediation occurs without attorneys, generally the parties work directly with the mediator to discuss issues, identify disagreements and hopefully, find solutions to those issues. This type of mediation can occur with the parties in the same room (either over zoom or in person) or in separate rooms (either in separate physical rooms at the mediator’s office or in separate zoom rooms). When the parties work without their attorneys, some mediators feel that they are able to more quickly and efficiently understand the parties’ true goals from their own mouths (rather than the mediator hearing from the attorney what he or she may be advocating for on behalf of the client). Often when the mediator works with parties without lawyers present, the mediator will attempt to provide each party some legal advice or recommendations as to what the mediator believes the law is and how the mediator believes that a trial or hearing would be decided, in an effort to help the parties find and reach solutions. If the parties are able to reach a settlement, the mediator will generally document the agreement reached, either through a formal settlement agreement or often, through a memorandum or letter outlining the terms of the parties’ agreement. Even when the parties agree to mediate without their attorneys present, the parties will generally have their own respective legal counsel who they will prepare for mediation with, consult with during the mediation if needed and then review the settlement terms and conditions and confirm that all issues have been covered and a fair agreement was achieved. Further, in many situations, even when parties agree to proceed with mediation without attorneys present, they often need assistance from attorneys prior to mediation to prepare for the mediation. This can involve engaging in formal or informal discovery efforts, identifying issues, finding solutions and making sure all relevant information is gathered and ready to be presented at a mediation session.
2. Mediation With Attorneys Present: When attorneys participate in mediation with their clients, mediation is often a more productive process. This is because as issues come up, the parties are able to better hash out and discuss the legal issues behind their disputes and the mediator is able to weigh in, from a legal perspective to help the parties understand the legal issues and hopefully, how the judge is likely to rule on the issues in the event of a trial. In some situations, having attorneys present for mediation is helpful as the mediator is able to “assign” or clarify additional information gathering that needs to occur to allow the parties to return to mediation to continue working to find solutions and resolutions to their disputes. Again, the collection of information needed can occur through formal discovery exchange or through informal cooperation. Often during the mediation process, when attorneys are involved, the mediator will “assign” information to be exchanged with deadlines for the sharing of the information. When this occurs, attorneys will also often come to mediation with more formal settlement proposals- either through a settlement agreement, a proposed asset division chart, a formal parenting plan or other documents needed to try to make maximum use of the mediation available to the parties.
How Do You Make the Best Use of Mediation?
1. Narrow and Define the Issues for Mediation. In many families, there are only a couple of issues that are actually in dispute. By outlining or clearly identifying the issues that need to be solved or resolved, you will make certain that you can use the limited mediation time available to be able to work through and find resolutions. Once the issues are identified, it is important that you attend mediation ready to take positions and find solutions. Ideally, in attending mediation, you would have an issue, be able to identify your desired outcome, the other side’s desired outcome and a compromise or solution to solve the problem. This will allow you to efficiently use the mediator’s skills to hopefully find solutions!
2. If you are planning to work with a mediator without attorneys present, it is important that you meet with your attorney in advance of the mediation, prepare proposals, understand the issues, the disagreements and where solutions can be found. Often this is a crucial component of having a successful mediation.
3. Attend mediation with accurate and up to date information. If you do not have full and complete information to discuss at mediation, you will not be able to come to a final resolution. Thus, when mediation is discussed or scheduled, it is important that you speak with your attorney to make a plan to attend mediation so that you can be prepared with the data and information needed to have a successful mediation. At mediation, the mediator needs an accurate picture/understanding of each party’s income, expenses, assets, debts, and other asset information in order to be able to discuss issues and solutions.
4. In regard to the information that you gather in preparation for mediation, have the documents available to verify your positions and arguments. Often, parties will disagree about data or information so having the documents available to share with the mediator will allow him or her to help you solve problems quickly and find solutions, without an unnecessary debate about differences in opinions regarding documentation.
5. Go into mediation with an open mind. Of course, there can be some things that you have strong feelings or beliefs about. For example, if you have thoughts that you will not settle a case without certain minimal parenting time, that may be reasonable. On the other hand, rather than focusing on a plan to have certain assets, be open minded to the fact that there may be more than one way to find a fair solution to the division of your assets and debts. The more you can be flexible and open-minded, the more likely the mediator is to find a common ground and solutions to resolve your case.
6. Make sure you go into mediation ready to control your own feelings and emotions. Sometimes when people have unresolved hurt feelings, they are not able to open their mind to solutions because they are focused on their own hurt or they have strong emotional reactions from being triggered from interacting with their spouse or former partner. Sometimes strong negative emotional reactions can prevent the ability to resolve disagreements.
Pingel Family Law works to help domestic and family law clients in all aspects of litigation, including mediation preparation and attendance. If you believe that your case is one that would benefit from mediation, please call today to schedule your consultation so that we can assist you by discussing the mediation process and the opportunity to maximize your success in the mediation process. Call Pingel Family Law at (816) 208-8130 today!