WHAT IS THE FAMILY LAW MEDIATOR’S ROLE IN DIVORCE MEDIATION?
A mediator is a neutral, impartial third-party facilitator who cannot order either of you to do anything. The mediator assists the parties in identifying the issue(s) that need to be addressed and guides the parties through the web of issues that need to be resolved.
The mediator also helps the parties with communication by reducing the obstacles, exploring settlement alternatives with the parties and brainstorming. Through extensive training and experience, the mediator can suggest creative solutions to problems that the parties may have considered “unsolvable”.
The mediator cannot impose a decision or a settlement in the case and cannot give legal advice. The mediator helps the parties negotiate, but the participants decide whether they agree to resolve their outstanding issues.
WHEN IS THE RIGHT TIME TO MEDIATE A DIVORCE?
Mediation can take place at any time. It can be scheduled before a divorce lawsuit is filed or anytime during the tendency of the case. For most individuals, the earlier in the process the mediation takes place, the more advantageous. Two big benefits to mediation are that it is less costly than litigation and also less stressful. As such, the earlier the parties resolve their divorce issues, the less stress they will endure in the divorce process and the less money they will need to spend. Also, the longer the litigation process goes on, the more antagonistic and aggressive the parties will get – and having additional anger and frustration can be an obstruction to future settlement.
Alternatively, however, sometimes the participants need to conduct discovery and obtain experts prior to knowing how they want to settle the case. If so, they will need to wait until their research is completed before they can proceed to mediation for it to be productive.
There is not one solution that would be applicable to all families. Like mediation, each case is unique and the time for going to mediation is also a decision for each family to make based on their situation.
IS DIVORCE MEDIATION FOR EVERYONE?
“Yes” simply because prior to going to trial the Court will require the parties to attend a mediation session and attempt to resolve their differences. However, the answer is also “no” because, in order for mediation to be successful, it is only for those individuals who want to settle the case. Some people aren’t prepared to settle for a variety of reasons. Sometimes they don’t want to get divorced.
Sometimes they are so angry that they want to get their day in court or tell the judge that their spouse is a really bad person. Some people are so angry and resentful that meditation is impossible. Additionally, mediation is not appropriate if one spouse has reason to believe that the other spouse is hiding assets. Accordingly, if there is a likelihood of fraud or a lack of trust that the spouse is not truthful in disclosing the marital assets than mediation cannot be successful.
The requirement for a successful mediation is that both parties want to resolve their issues in a non-adversarial and amicable way and with full and candid disclosure of the parties’ financial picture.
HOW DOES PRO-SE DIVORCE MEDIATION WORK?
You and your spouse hire one person – an impartial mediator – to assist you in identifying the issues that need to be addressed in your divorce proceeding and then help you explore solutions as to how to resolve those issues. Once the parties reach an agreement, the mediator drafts the proper agreements for you to bring to the Court.
The Agreement that you arrive at must be acceptable to both parties, and the Agreement is then submitted to the Court for the divorce to be finalized.
Pro se mediation is, therefore, the least expensive divorce assisted alternative. The key component to mediation is that the final resolution is determined by the parties themselves rather than being imposed by a judge.
DO I NEED AN ATTORNEY?
The mediator cannot provide any legal advice to either of the parties. As such, some parties elect to retain an attorney with whom to consult before, during or in between mediation sessions. Some retain an attorney after the Marital Settlement Agreement and Parenting Plan is fully drafted solely to review and advise the individual regarding the legal implications of the documents they intend to sign.
Many people do not retain an attorney at any stage of the process. The mediator can draft all the Agreements that reflect what the parties have agreed to in the mediation sessions if they choose not to retain attorneys.
Again, this is a personal decision for each individual to make based on their specific comfort level with the opposing party and the legal system.