Mediation: A great alternative to court
What is mediation? Mediation is a great way to work out all the issues leading to a settlement of your separation/divorce outside of court. Issues usually center around parenting time (how much time do the kids spend with each parent, and when); child support; and dividing up the property. A neutral mediator works with the couple to identify the areas of disagreement, come up with options for working out a fair and appropriate settlement, and deciding on the best solution. Mediation is a voluntary process: both parents need to want to mediate, and to be able to make and keep agreements. Mediation is confidential: neither you nor your mediator can be called to testify at any point as to what anyone said in mediation.
Mediation keeps people out of court. You keep control of your divorce -- decisions are not left to judges who don't know you, your family, or your unique situation. Studies show that 98% of divorce cases settle before going to trial. It makes sense to try mediation, so you reach an agreement sooner in the process rather than later.
Do lawyers come with us to mediation?
Lawyers are welcome to attend but couples usually come alone. Sessions may be conducted individually if either party is not comfortable meeting together. Mediation is an informal process; if lawyers attend, it is only to answer any legal questions that arise. Of course, you are always free to contact your attorney at any time for counsel during mediation. Most people appreciate that mediation is less expensive than retaining lawyers to negotiate on their behalf, since both parents share the single cost of one mediator.
What if we can agree on some issues but not on others?
We mediate every issue as far as we can go. You always have the right to go before the judge and have your day in court. The risk is that the judge will make a decision that doesn't work well for you. It's always best to make every effort to work things out in a cooperative manner, outside of court.
What if our judge ordered us to mediation? How can that be voluntary?
Judges want people to give mediation a try. Nothing makes a judge happier than to learn that a couple have settled their differences. If you give mediation a chance but decide it's not for you, you will have satisfied the court's order. Because mediation is confidential, all the judge learns is that mediation was attempted but was not successful.
Is mediation appropriate for everyone?
No. In cases where there has been domestic violence, mediation is only appropriate if adequate security measures are available and both parties feel comfortable working together. In a case where one parent wants to mediate and the other doesn't, mediation cannot go forward. And if one or both parents is abusing drugs or alcohol, or has a serious mental illness, mediation is less likely to be successful.
Co-mediation option: For complex marital estate issues, I offer my mediation clients the option of engaging a co-mediation team comprising me and attorney Laurel Stuart-Fink (www.laurelfink.com). Laurel has broad experience and sensitivity in addressing complex legal issues regarding individual vs. marital property, business valuation, and dividing retirement accounts. Fees are adjusted to make this option economical and efficient.
