PREPARING FOR MEDIATION
Author: Jeff Anderson
Courts often require mediation. Knowing what mediation is, how it works and when it is appropriately timed is important.
What is Mediation?
Mediation is a form of alternative dispute resolution. Before mediation can take place, the parties or the Court selects a mediator. That person is neutral – they don’t have a stake in the outcome of your case; they just want to get it settled. In most circumstances, the parties will never see each other the day of the mediation. They will be in separate rooms and the mediator will go back and forth between the rooms, trying to get the parties closer and closer in their offers. Your divorce lawyer (unfortunately) cannot be your mediator.
Mediation Talks are Not Admissible in Court
Nothing that happens at mediation can be brought up in Court. All of the offers are confined to the negotiations and the mediator cannot be called to testify about the process. That means you are free to make offers without worrying about those offers being repeated to the Judge or by your spouse’s mediation lawyer.
What’s Better, Mediation or Court?
More than 90% of all cases settle, including family law cases. The better the mediator, the better the chances are that the mediation will settle all or almost all of your issues. It is rare that anyone leaves a mediation session with a deal that is as good or better than their best day in Court, though it does happen sometimes. Mediation by its very nature is about compromise.
That doesn’t mean you give up the things that are important to you. Indeed, it is important to work with your attorney before the mediation to decide preliminary offers and how far you are willing to go on any particular issue. It’s easier to do that ahead of time, when there is less emotion, than it is to do it in the heat of a negotiation.
Mediated Settlement Agreements
Mediation is a special form of Alternative Dispute Resolution. It’s special because any agreements made, whether those agreements are for the children or for property, are binding on the parties once they sign the Mediated Settlement Agreement. It is difficult, if not impossible in almost every circumstance to reverse the agreements of a signed Mediated Settlement Agreement (MSA). In fact, our law says that once the agreement is signed, the parties are entitled to a judgment that follows the MSA.
At that point, the Court doesn’t even have the option of changing the terms. So make sure what you’re signing is what you want. Nobody has the authority in a mediation to make you sign or agree to anything. It’s up to you, with the advice of your mediation attorney, to make the best decisions you can.
The timing of mediation is important. Generally, mediation is appropriate after you have gotten all of the information you plan on getting before you go to trial. After all, if you don’t have the information, how can you make an informed decision on a settlement?
Preparing for Mediation
Getting ready for mediation isn’t necessarily difficult, but it does take some work. Part of that work was done while you were getting your attorney the paperwork he or she needs to try the case. Part of it is sitting down with your lawyer and coming up with a strategy for handling the mediation and developing limits.
Mediation for Property Divisions
For property division, your attorney, with your help, will likely prepare a spreadsheet so that when you’re negotiating, you can see the division of assets in written form. Sometimes clients choose to work with their attorneys to prepare a position statement to give to the mediator ahead of time, so the most use can be made of everyone’s time on the day of mediation.
Call Our Experienced Mediation Lawyers Today
We understand you are ready to get your divorce settled so you can move on. Mediation, like all settlement, takes two sides. If both sides want it over and are willing to bend some, then your lawsuit might be just that close to conclusion. But experience counts, even in mediation. Negotiation strategies are learned over time and with a lot of practice. That’s what we do.