Mediation in Family Law
Mediation is a process where both parties—typically individuals in the process of a divorce or child custody case—meet with a trained mediator to work out the details concerning their lives post-divorce.
Issues concerning finances, custody of any minor children, and other considerations are typically discussed under the mediator’s guidance. Mediation is meant to be a non-adversarial process where both parties can have an open, constructive dialogue about the best way to move forward with their lives after the separation.
The divorce and mediation laws are different in every state. If you are going through child custody, divorce, or other family law proceeding and want to know about how mediation works, talk to a mediation lawyer in your area for legal advice.
In most cases, divorce mediation involves a pre-mediation screening to determine whether mediation is even workable. If one party or the other is opposed to mediation, or the relationship is particularly adversarial or abusive, mediation may not be a suitable process. Parties in active litigation may also be ordered to attend mediation by the judge.
After mediation is agreed upon, or ordered, a trained mediator (typically a social worker, lawyer, judge, or other professional, who likely will have completed training and obtained certification to mediate) meets with the parties, and their attorneys if either or both have attorneys. Even if the mediator is a lawyer or a judge they cannot offer legal advice, instead they are an impartial and patient guide to the conversation. Each person should have their own lawyer to prevent any conflicts of interest.
In many cases, a mediator will work with both sides to prepare a written agreement, which the parties develop during the mediation, about the various issues discussed in the mediation sessions. This agreement will be reviewed by each party and their legal counsel. In some cases, the mediation agreement will be the global settlement agreement which resolves all pending issues in the divorce or custody case.
The primary difference between going through mediation and the typical divorce or child custody case via litigation is that the two parties actually sit down to discuss the matter in person (or via online connection).
A more traditional divorce or child custody case is litigated by each party’s respective lawyer. This usually means that the bulk of the negotiations occur between the lawyers’ offices, with little to no contact or conversation between the two parties concerning the issues.
The mediation process is the same for child custody cases, except things like property division and division of debts, are not discussed since those are not issues to be resolved in a child custody case.
Child custody mediation sessions can be either court-ordered or sought privately and consensually. In California, for example, a state-issued fact sheet (FL-314-INFO) clarifies that the goal of child custody mediation is to develop a workable parenting plan. If the parties can’t reach a plan via mediation, a judge will have to decide.
Child custody mediation involves sitting down with a mediator to discuss issues surrounding custody—both legal and physical—as well as any timetable concerns that either parent might have.
Mediation is a form of alternative dispute resolution (ADR) where the parties work collaboratively to work out a solution or solutions that are satisfactory to them both.
On the other hand, a settlement meeting or settlement conference may look like a mediation session, or it may resemble something more similar to a typical negotiation between attorneys representing each client. However, a court-ordered settlement conference will be presided over by a legal authority (typically an attorney acting as a judge pro tempore), as in New York.
Collaborative divorce differs from mediation in that it, by definition, involves lawyers negotiating on behalf of each party to a divorce. In this way, it resembles typical divorce proceedings. But it also falls in line with the spirit behind mediation as it demands a cooperative approach to finding a solution that suits everyone involved.
Couples typically seek a collaborative divorce to reduce the cost of the divorce (cutting down on lawyers’ fees) and keep any non-romantic relationship the two parties may have intact or for the benefit of any children. In a collaborative divorce, negotiations are made in good faith, without strong-arm tactics that may be more common to a traditional divorce conducted through attorneys.
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