Mediation is a process in which the parties attempt to settle their case outside of the courtroom, with the assistance of a mediator. The mediator serves as a neutral facilitator, attempting to help the parties reach a settlement. The mediator literally stands on the “median,” in the middle of the dispute, listening to both sides and helping the parties reach concessions with each other on the key issues.
Mediation is not an alternative to hiring a lawyer. You will still need a lawyer to file your divorce papers or to defend the other side’s divorce papers. You will also need an attorney to assist you to prepare the appropriate settlement documents and to help you finalize the divorce at the final proceeding in court. However, a mediator can assist the parties to reach a settlement of the major issues. Although mediators do not generally work for free, the cost of mediation is far less expensive than litigating each of the issues over a protracted period of time. Many mediation sessions are conducted informally, but this is not an excuse to treat mediation as a less important process than going to court. At The Law Offices of Mark S. Guralnick, we treat mediation very seriously. We prepare our clients for the mediation process, exploring various settlement scenarios in advance. Where appropriate, we run the alimony and child support figures and calculate different potential outcomes. When we appear with a client at mediation, we come prepared to negotiate, with all of the supporting documentation, evidence, and leverage we need to secure a favorable outcome for our client.
Some mediations are court-ordered; other mediations are voluntarily arranged with a private mediator. In most states, a mediator must be trained and certified by the Court. This involves completion of a mediation training course and, in some places, temporary supervision by a more experienced mediator. A mediator may be an experienced attorney or even a retired judge. In some locales, psychologists and other practicing professionals may become qualified as mediators too.
The information shared with the mediator during the mediation process is confidential. Therefore, you may not admit evidence in court based on communications that occurred during a mediation session. Likewise, the mediator herself may not be called as a witness to testify in any future proceedings, if the case is not settled during mediation.
Mediation is not the same thing as arbitration. In an arbitration, an arbitrator serves in a role similar to that of a judge. The arbitrator hears the evidence, listens to the testimony, reviews any exhibits, and ultimately renders a decision. The arbitrator’s decision may be binding, or in some cases, it may be non-binding and therefore appealable. Unlike mediators, arbitrators do not communicate directly or informally with the parties in an attempt to settle the case.
Mediation may be used for any number of contested issues in a matrimonial or domestic relations proceeding. For example, in a child custody dispute, mediation may assist the parties in resolving the terms of joint custody and visitation/parenting time with the children. Related issues, such as child support, health insurance coverage, and payment of medical expenses can also be addressed during mediation. In a divorce case, mediation can be used to tackle virtually all of the issues, including alimony, property division, responsibility for debts and liabilities, payment of attorney’s fees, tax questions, and even the grounds for divorce. When a mediation is successful, the parties will enter into a written mediation agreement which sets forth the terms of their settlement. This agreement may still need to be converted to a formal written settlement agreement, and it will still be necessary to hold a final divorce hearing before the judge assigned to the case.