What is mediation and how is it used in a divorce?

Mediation is a confidential settlement procedure where parties to a divorce meet with a third party neutral person, referred to as a “mediator,” to try to resolve areas of conflict in a divorce. The parties, their attorneys, if applicable, and the mediator discuss the positions of each party and the strengths and weaknesses of each party’s position. If the parties reach a settlement, the mediator drafts a binding agreement called a Mediated Settlement Agreement that reflects the negotiated settlement.

Is mediation required in a divorce?

Usually yes. In a divorce case, prior to the final trial, and sometimes prior to a temporary orders hearing, the court will likely order a mediation. If the parties cannot agree on a mediator, the court will order the parties to a mediator and schedule mediation. Each court has different rules and should be contacted about its specific requirements for mediation, prior to a hearing or trial.

What are the advantages of mediation with regard to a divorce?

Mediation is the parties’ process and decisions. Not the courts. The process gives the parties to a divorce control over the outcome of their case; offers certainty of the outcome; can be creative based on the individual parties and their children; is generally less expensive than a trial; and is a friendlier, less contentious process.

Does the mediator in a divorce have to be an attorney?

No, but an attorney-mediator experienced in family law and divorce is generally very beneficial in family law disputes, whether involving children or property issues.

Do mediators charge a fee, and if so, who pays?

It depends. There are mediators and organizations who perform mediations for divorce cases based on the ability of the parties to pay. Generally the parties split the cost unless they agree otherwise. There is a considerable range in fees charged by mediators. Often based on experience, qualifications and whether the session will be a full day or half day. Choosing a mediator in a divorce can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C.

Can parties attend mediation in a divorce without an attorney?

Yes, but it is not recommended. When parties are represented, the attorneys normally participate in mediation to help their client make an informed and reasonable decision. It is important to note that the mediator is not able to give a party legal advice.

What happens to the divorce case after mediation?

If an agreement is reached at mediation, the Mediated Settlement Agreement is transferred by one of the attorneys into an Agreed Order and presented to the judge to approve and sign. If no agreement is reached, the case proceeds to trial and the disputed issues will be decided by the judge or the jury, when appropriate.