So you've filed for divorce. Now what happens? How do you and your spouse come to an agreement on issues you disagree on? Many judges are requiring parties to attend mediation prior to setting a trial. So what is mediation, and how can it help you?
What is mediation?
Mediation is a process that allows you and your spouse to resolve conflict in a peaceful manner. You and your spouse meet with a neutral third party who is trained in the mediation process (the mediator). The mediator will assist you and your spouse in discussing the outstanding issues, and helping both of you review your options, so that you may reach an acceptable outcome of your differences.
What should I expect to talk about at mediation?
At mediation, the topics for discussion are decided by you and your spouse. The mediator will give each of you an opportunity to present an opening statement. This opening statement will consist of what you believe the issues are, from your perspective. As the mediator is a neutral third party with no information about your case, these opening statements assists the mediator in determining the what the issues are, and what the topics of discussion will be. Any issue you have between you and your spouse may be discussed at mediation. Nothing is too small or too great to be discussed at mediation. In fact, mediation is a safe environment to express your concerns and opinions regarding your case. And often times, clearing the air at mediation can help both of you to move forward in a positive way.
Why should I mediate my family law case when I can just go to trial?
In mediation, you are free to craft an agreement that makes sense to you, your spouse, and your children. If you and your spouse come to an agreement (or a partial agreement), you "own" the terms of that agreement, are more likely to be satisfied with the terms, and therefore more likely to abide by the terms. It's never best to allow the judge to have complete control over the outcome of your case, or to let the judge decide what your future will hold. Mediation allows for you and your spouse to be creative, and to work towards an agreement that will be durable - standing the test of time. And, mediation is a cost effective means to reach an agreement. Trial is financially expensive, and emotionally tolling. After spending thousands of dollars, trial can leave parties bitter and disillusioned at the judicial process. And, if you and your spouse are not getting along, the trial process will only enhance existing hostility between each other.
What if we can't agree on all of the issues at mediation?
Perhaps you schedule a second session with the mediator. Or, if you believe you are truly at an impasse, a trial on the outstanding issues may be required. But, if you have reached a partial agreement in mediation, any issues agreed to at mediation will not need to be discussed at trial, saving you money at trial.
What if we sign an agreement at mediation. Can I change my mind later?
The mediation process, and entering into an agreement at mediation, is a voluntary process. It is important that when you enter into your agreement, you are doing so freely voluntarily, and with the expectation that you will be bound by the terms. So, it is crucial that you understand the terms of the agreement prior to entering into it. However, once you and your spouse have entered into an agreement, the signed mediation agreement becomes a legal and binding contract, enforceable by the court. So, it is important to fully understand the terms of the agreement before you sign the mediation agreement, as the court will hold you to the terms of the agreement.
Are we allowed to have our attorneys present at mediation? Yes!
The mediation process doesn't look to exclude your attorney. In fact, it welcomes their participation. Clients depend on their attorneys to provide them with legal advice, and to assist them through the divorce process. Having your attorney present at mediation is important as they can outline the issues for the mediator, and assist in generating options. And most importantly, they can explain the implications of the agreement before you sign it. As discussed above, there is no going back once the agreement has been signed.