Divorce Mediation and Alternative Dispute Resolution (ADR)
How Does Divorce Mediation Work?
Mediation is an opportunity to settle a case without going to trial. It is an alternative dispute resolution process that is more flexible than bringing a divorce before a judge. It is an attempt to come to a mutual agreement without involving the court. Your divorce lawyer generally acts as your divorce mediation lawyer, representing your interests during mediation.
A divorce mediator is a person who is paid by both parties to reach a settlement. This person is expected to be make things as fair as possible. However, many spouses feel intimidated in this process. If you choose alternative dispute resolution, you need your own divorce attorney at your side. In a situation where the two parties don’t want to be in the same room, an individual divorce mediation lawyer is especially important.
IS DIVORCE MEDIATION MANDATORY?
Divorce mediation is not automatically mandatory. Both parties must agree to attend the mediation for it to move forward. Parties, though their divorce attorneys, can schedule divorce mediation at any time during their family law case.
However, the court will often order parties to go to mediation before going to trial. The parties and their attorneys will schedule a time to meet together with a mediator. Sometimes all parties meet in the same room for mediation. In high conflict situations, the parties can stay in two separate rooms and the mediator will go back and forth between the two rooms. Your attorney will remain by your side throughout the mediation serving as your advocate and assuring you receive a fair settlement.
Mediation will typically last as long as it takes to resolve the matter. This means that mediation can last for only two hours or for several days, depending on how willing the parties are to negotiate and how many issues there are. If a court appoints a mediator pro tempore, you will not have to pay for their mediation services, and mediation is typically scheduled for 2-3 hours. However, it is often beneficial to choose your own private mediator that caters more specifically to the individual needs of your case. If you are using a private mediator, the mediator’s fee will be split between the two parties and is typically due at the time of mediation. The private mediator’s fee varies significantly by mediator.
HOW TO GET WHAT YOU WANT IN A MEDIATION
A mediation is, in many ways, no different than regular divorce proceedings. Nothing can be perfectly fair, and few people will be 100 percent satisfied. If you head into mediation without clear guidance, you can end up giving up much more than you get.
Our divorce attorneys have seen far too many unfair, impracticable, and unmanageable resolutions in mediation because of poor representation. This creates more legal problems in the future, which drives up legal fees. It is so much harder to undo an unfair agreement. Therefore, it is vital to do it right the first time. We believe that mediation can be highly successful and effective if our clients are informed, and an attorney is present to ensure that the resolution is reasonable and fair.
WHAT IS A MEDIATOR?
A mediator is a specialist trained in negotiation and communication. Mediators are effective in resolving conflicts and facilitating conversation about tough and emotional issues. They help clarify the parties’ positions and identify the specific issues. Mediators are also well versed in family law conflicts and can anticipate issues that come up in the future that you may not see. Because family law matters are often high stress, high emotion, and high conflict situations, a mediator can be an invaluable tool along the pathway of resolution.
HOW DOES MEDIATION/ADR HELP? WHAT ARE THE BENEFITS?
Often, courts are poorly equipped to handle disagreements that parents are in the best position to resolve. However, due to the high conflict nature of family law issues, those disagreements are often left to the court to decide. Those court decisions can be very unpredictable. Mediation is beneficial because it allows the parties to be highly involved in the final resolution. Parties will have much more control over the situation and consequently, the final decision is much more likely to be followed. This can lead to fewer legal issues in the future.
IS RESOLUTION MANAGEMENT CONFERENCE (RMC) THE SAME AS MEDIATION?
RMC is very different from mediation. An RMC is an opportunity to discuss issues, but it is only 15 to 30 minutes of discussion in front of the Court, as opposed to a long private conference in an office setting like in mediation. Additionally, issues must already be narrowed and presented to the court in a Resolution Statement before the RMC begins. It is easier to think of an RMC like a pre-trial conference before the Judge.
HOW CAN WE HELP?
Most family law cases can be settled out of court. Mediation is one of the tools we have to make this happen. With or without mediation, it is essential to have an attorney guide you. The attorneys at Gillespie, Shields, Goldfarb & Taylor are creative problem solvers and fierce advocates of fairness. We are committed to ensuring that your mediation establishes fair and sustainable results.