You and your spouse have decided to call your marriage quits. One of your friends may have mentioned mediation to you as a possible alternative to the often time consuming, uncertain and expensive traditional avenue to resolve the issues as a result of the end of your relationship, namely the court system. So what is mediation and how does it work?
Mediation is an alternative dispute resolution mechanism whereby a Mediator (an impartial person who is trained in conducting mediations) is chosen by the parties to assist them in coming to their own settlement. The mediator does not give advice to the parties, does not advocate for either party, does not take sides and does not issue any orders or findings as to how an issue should be resolved. The mediator is there to help the parties reach their own agreement on their own terms. This often gives the parties more autonomy and control than the traditional court system. Each party is free to consult with their attorney if they have a legal question during the mediation process. Attorneys can be present at the mediation, but typically only the parties and the mediator attend the mediation sessions.
If you decide on this route, you should choose someone who is experienced in family law issues and has received the appropriate certification and training as a mediator. Check with the family law section of your local bar association or alternative dispute resolution committee for recommendations, or better yet, retain a family law attorney to consult with and get recommendations from him or her. Once you and your spouse have selected the mediator, your first contact will be a phone call to set up an appointment. Depending on the mediator, he or she may have different procedures. The mediator will likely meet with you and your spouse together first, and then decide if he or she needs to meet with you separately to get additional information. Some of the issues may be able to be narrowed and the mediator will help you determine the outstanding issues and how to resolve them. If the issues involve custody, the mediator may ask for proposed custody schedules or parenting plans from each of you to see where the disputes lie. If there are issues regarding support or asset values and division, you and your spouse will each provide the other and the mediator with all documents and information regarding your income and assets, such as tax returns and account statements, and retirement statements. If assets need to be valued before deciding on a division, for example, if you don’t know the value of your house, the mediator can make recommendations for appraisals, etc.
There will likely be a number of mediation sessions before an agreement is reached. If the parties are successful in reaching an agreement, a terms sheet is prepared by the mediator which is then shared with counsel for both parties. This is not the binding agreement. The parties’ attorneys then prepare the agreement to be signed by the parties.
Although mediation can be a wonderful alternative to the court system for parties to resolve their disputes, it may not be appropriate in all cases. For example, if there is a history of domestic violence and one party does not feel safe or on equal footing to negotiate with the other party, mediation is not recommended. Also, if there are complicated issues with respect to asset identification, valuation or distribution, those issues may not lend themselves to mediation. Similarly, if one party is self employed and there are questions regarding his or her actual income, mediation may not be the best choice.
If, after the mediation has started, either party or the mediator believes that nothing is getting accomplished, the mediation can be terminated and the parties can proceed through the court system.
