In mediation, an impartial person (the mediator) supports people in reaching an agreement they can both approve. The mediator assists people in communicating the issues in a way that often enables the couple to settle the dispute themselves. It is an important distinction to remember that mediators do not make decisions. Agreements can only be attained if everyone consents.
Remember that a mediator will not force you to agree to anything. Even if you do not believe you will be able to agree to everything, mediation can benefit you in resolving some issues. The rest can be discussed before a judge for a decision. Additionally, by preparing for mediation, you will prepare yourself for trial in case you do not reach an agreement.
To locate a mediator in your area, you can:
- Check your local telephone directory (most have a section for mediation);
- Research on the Internet;
- Contact a community organization;
- Contact your local bar association and;
- Contact the local court to see if they have a mediation panel.
If you have been in an abusive relationship, ensure you are safe and comfortable with the mediation process. Understand the basics of protecting yourself and learn more about resources for victims of domestic violence.
What is Collaborative Divorce?
The California courts describe collaborative divorce as another approach to handling your divorce or legal separation. In a collaborative divorce process, you and your spouse or domestic partner negotiate an agreement with professional assistance. You each hire specially trained collaborative lawyers who advise and guide you in negotiating the settlement agreement.
You can arrange a meeting separately with your lawyer. The lawyers and both clients also meet together frequently. Sometimes you and your spouse or domestic partner can bring in other people, like child custody specialists or accountants, to enable you to settle your case without having to go in front of a judge in a contested case.
For a collaborative divorce, both spouses or domestic partners and their lawyers typically sign a contract announcing they will not go to court. However, if the parties cannot reach a settlement and must go to court, the lawyers agree to withdraw from the case. You will have to obtain a new lawyer or represent yourself if that occurs.
There are many collaborative law resources, and you will find information to locate a lawyer that provides collaborative law representation. You can also call your local bar association and determine if there are any “collaborative law” groups in your county.
How Does Mediation Function?
Mediation is a method for people to improve communication and create solutions with the aid of a mediator. A mediator is a specially trained, neutral person who encourages communication and discussion of your concerns for you to reach a voluntary agreement that meets your needs.
A mediator is not a judge or arbitrator; the mediator does not decide your case or provide opinions about how the court will decide. The mediator may review options and encourage you to consider different approaches to how you can agree on ways to settle your case.
Mediation is a structured process, but mediation is not as formal as a trial. First, the mediator will request you to speak about each of your views. Then, the mediator listens attentively and may ask questions to allow you to focus on the items you need to discuss and how to identify and resolve the issues in your case. You may not attend the meeting to agree on all the issues, but even a partial agreement can make it easier to move through the court process.
One of the advantages of mediation is that you will establish your agreement. For instance, clients know the most about their case and all the evolving issues, such as parenting their children, resolving financial issues, and planning for the future. The mediator must offer direction for you to resolve your disputes successfully. In some cases, the mediator may consult you to concede to some basic ground rules during the discussion.
For example, respecting each person’s right to talk without interrupting, listening carefully to the other person, and supporting you to use your time wisely by not making accusations, arguments, shouting, or name-calling.
All participants will have the opportunity to explain their perspectives. The mediator may summarize what you state and then guide you to focus on the issues you will want to resolve. It is understood that you, not the mediator, recognize the most about your concerns and the crucial issues to resolve. The mediator can enable you to discuss these concerns and issues while collaborating with you to discover workable options and agree to terms of an agreement that are acceptable to both of you.
When you consent to solutions to some or all issues, the mediator may prepare a written summary (or memorandum of understanding) of your agreement that you can have an attorney review. Having an attorney review your agreement is vital because you and the mediator may not have discussed all of the issues you need to resolve. An attorney can assist you in finalizing a document to present to the court.
What Issues Can You Mediate?
You can mediate to deal with all issues in a divorce—including parenting schedules, parenting responsibilities, child support, spousal support, property division, and other financial issues. If your mediator works for a court, you may be limited to mediating parenting issues. In some cases, parties who think about mediating have had problems with domestic violence in their relationship.
Mediators do not mediate the issue of domestic violence itself. There should be a private screening process; so that if you are a victim of domestic violence, you can express any concerns you have about safety. If your mediator or a staff member does not speak with you privately about your concerns, you should speak to your attorney or the hearing officer about your concerns.
The mediator may use separate rooms for the parties or conduct the mediation by phone. It is important to note that a court can order you to participate in mediation, but the ultimate decision to settle is yours.
What is the Role of a Lawyer in a Divorce Mediation?
According to the Ohio State Bar, participating in mediation is not a substitute for retaining an attorney. The mediator will not offer legal or financial advice. Attorneys encourage their clients to understand the law and make informed decisions about resolving issues in mediation. If you desire, your attorney or another support person may attend and participate in mediation sessions. Assistance from an attorney before or after the mediation can be helpful even if the attorney does not attend the mediation with you.
An attorney can help you prepare for mediation, organize your thoughts and prepare a list of issues for discussion. And after mediation, an attorney can evaluate your agreement and suggest additional issues or changes to clarify the agreement. Moreover, an attorney can incorporate your agreement into a separation agreement or divorce decree that will be the final document to resolve the divorce.
When Do I Need to Contact a Lawyer?
If you require marital mediation, it may be helpful to seek out a local family law attorney to help you understand the basics of mediation.
