Mediation can be a wonderful tool in divorce cases. Sometimes the parties voluntarily decide to participate in mediation and, other times, the trial court judge will require that the parties participate in mediation. Whether voluntary or court ordered, mediation often ends with parties settling many, if not all, issues in their divorce case.
Unless you have participated in a mediation before or you are an attorney or other legal professional, you are probably wondering at this point, “What is mediation?”
Divorce mediation is a process designed to resolve disputes between the husband and wife in hopes of eliminating as many issues as possible in the divorce case. Most often both wife and husband are represented by attorneys. A third attorney is the mediator and neutral party whose job is to help the two parties and their attorneys “meet in the middle” so to speak to come to an agreement on issues in the divorce. The mediator does not represent either party. He or she works to assist the parties to negotiate their own settlement. The mediator can instruct the parties on what the laws are, but he or she will not give legal advice.
Mediation sessions are confidential. This means that the mediator will not give testimony at the final trial, should the parties fail to settle the case at mediation. The parties are free to make statements that help move them closer to settlement without fear that it may be used against them at trial. Most often, the parties are separated into their own rooms and the mediator shuffles back and forth between each as he communicates offers and compromises and pulls the parties closer to an agreement.
One of the unique things about divorce mediation is that the mediator can often help facilitate unorthodox settlement agreements. It’s a last-ditch effort to concentrate on what is most important to each party and make unconventional exchanges of property before leaving up to the trial court where the judge may very well order property sold. The difference between leaving things up to the trial court and coming to an agreement during mediation is the amount of control retained by the parties. In court, the parties have no control, and that is why many divorce litigants reach an agreement during mediation.
A cliché example of a potential agreement one could make in mediation would be for a wife to retain jewelry and a husband to retain guns. Each party would face the risk of these items being ordered sold by the trial court and the profit being split between them. Mediation takes that risk away, should the parties come to an agreement both can live with.
If the mediation is successful, the mediator will draw up an agreement on the spot for the parties and their attorneys to sign. Once signed, the agreement is binding. He or she will also indicate to the trial court that the parties acted in good faith during mediation and reached an agreement.
It really is as they say, “There is a time to be tough; a time to be adamant; a time to be open to compromise; and a time to reach an agreement.”