What to Expect in Mediation

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What is Mediation?

Mediation is a process where the mediator, acting in an impartial, neutral way, helps the parties to reach an agreement. This page answers many of the questions that people have about mediation.

The goal of mediation is to reach an agreement that is satisfactory to both parties. Mediation can result in much more customized and creative solutions than can typically be achieved by the Court, since the Court has very limited time and is bound by the law in its decision-making.

Typically, we are asked to help the parties with the entirety of their agreement: Parenting Plan, Child Support, Division of Property and Debts, and Spousal Support. The agreements reached are incorporated into a Memorandum of Understanding that the clients then file with the Court and is incorporated into their Divorce Decree.

Mediation is voluntary. Mediation cannot work if one or both parties have been forced to attend. Either party is free to leave the mediation at any time.

Mediation is confidential. The mediator is bound to keep confidential all communications related to the mediation and cannot be used as a witness if the matter goes to court. Similarly, the parties are bound by confidentiality and are not allowed to use in court any information discovered during the process of the mediation .

Different approaches available.  The term “mediation” is used to mean a variety of approaches for a neutral to be involved in helping people come to agreements.  Often, a “settlement conference”  approach is used whereby the parties and their attorneys are in separate rooms and the mediator tries to find a middle ground between two positions, often by telling them what a judge would say if it went to court.  These are often 2 hour to 1 day sessions and can be efficient in reaching an agreement, but may not be very satisfying to the parties.

eye to eyeWe believe that people make better decisions, more cost effectively and peacefully, if they are able to take a non-adversarial approach to their divorce. We encourage our mediation clients to work together in the same room with facilitated and guided discussions to explore the issues and reach agreements.

How are we different?

  • Our preferred approach is normally one of problem-solving together with the parties in the same room to try to reach agreements that are best for the parties and their children. We use an interest-based approach, meaning that we try to help people understand each other’s interests and needs, rather than merely find a middle ground between two “positions”.  However, we sometimes will “caucus” (separate into different rooms) if that is what will help the parties to reach agreement.
  • Most of our clients value our ability to provide in-depth financial analysis and planning for both parties so that they can really understand the financial implications of their decisions. Most mediators are not able to do this.
  • We try to encourage communication between the parties and to reduce unhealthy conflict. Often getting the facts presented in way that everyone can understand them can help overcome anxiety. However, it is also important that fears be recognized and needs addressed in a constructive way.
  • Finally, retirement plans often need to be valued or divided. We have expertise in helping clients with these issues.

Is Mediation Right for You?

If you have not retained attorneys to represent you, and you can discuss your issues and have some level of trust, but need someone to provide a safe place for the discussion and to provide input and assistance to your discussions and decision-making process, then mediation could be right for you.

If you have retained attorneys, then your attorneys will most likely seek the services of a mediator to help you reach agreement so that you do not have to go to Court. Most courts will order mediation to be attempted before they will hear the case in court.  By employing a mediator early in the divorce process, unnecessary conflict and unhelpful posturing can be minimized, thus reducing costs and additional damage to children.what to say

What to expect.

Sometimes people just need one mediation session to resolve their situation.  This is particularly the case when attorneys are involved and wish us to use more of a settlement conference approach.

However, our typical approach in working with unrepresented parties is to help them through the entire process, and is described below.

First Meeting.  while we may have had an initial short telephone conversation, the initial  part of the meeting provides with an opportunity to decide if we want to work together, assessing whether mediation is appropriate and whether our approach is one in which you both feel comfortable.  Assuming we all want to proceed, we will discuss your situation, identify your goals and needs, identify any urgent issues that need to be addressed, learn about and dispel myths about the divorce process, and assign tasks that need to be completed (eg data collection).  Good decisions cannot be made without facts and an understanding of each other’s needs and goals.

Subsequent Meetings.  Subsequent meetings are used to confirm that we have all the information we need to make decisions, for discussions on the various issues that need to be decided, and for making decisions.  The final meeting may be one in which all the documents for Court  are signed.

How long does it take? Rarely do our meetings last for more than 2 hours.  We can do a lot of work by phone and via the internet.  The number of meetings depends upon the complexity of your situation, how far apart you are on issues, how much help you need to reaching agreements, and how ready you are to make decisions.

How much does it cost? The cost depends on the amount of time we need to help you to reach all your agreements.  If you are coming in for a single mediation session, then you should expect 2 to 4 hours at $200/hour total.  The typical range for mediation services when we are helping you through the whole divorce process ranges from $1,500 to $5,000.  We typically ask for a $2,500  retainer at the first meeting, which we hold in our trust account and bill against it as time is used.  We may ask that the retainer be topped up.   Retainer funds not used are refunded at the end of the process.    We also charge a one time assignment set up fee of $150 for out of pocket expenses, short phone calls and short emails.

How do attorneys and other professionals fit into the process?

Advisers can include attorneys (family law, trust, business), forensic accountants, valuation specialists, parenting professionals, therapists, investment advisers, etc. With the exception of the attorneys, who may only act for one party, the advisers may be jointly appointed. Often having a divorce coach to help with difficult communication issues, or with the grief that accompanies the loss experienced in the divorce process, may be helpful. Divorce coaches and specialists in grief and loss can be found at Grieflink.com.

Professionals can attend the mediation meetings or be available by phone for consultation.

Mediators, including attorney-mediators, are not allowed to give legal advice.  Often people will find it helpful to consult with an attorney to get legal advice generally on their divorce, on one or more specific issues, and/or to review the final agreement.  Consultation with an attorney means that you are simply seeking advice, not turning over your case to them to represent you.  However, your situation may require that you, due to complexities, high conflict, poor behavior or power imbalances, retain an attorney to represent you.

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