At Envision Family Law, our legal clients commonly approach us with questions regarding mediation. In many cases, mediation is the most favorable option for individuals who would prefer to keep matters out of the courtroom. Let’s discuss exactly what mediation is and how it works.

What Is Meditation?

Mediation is one of several forms of alternative dispute resolution. Put simply, mediation is a legal negotiation that is moderated by a neutral third party outside of court. Unlike arbitration, which is another type of alternative dispute resolution, the neutral party does not make any decisions in mediation sessions. In the traditional litigation process, the neutral third party is typically a judge who makes a final decision after both parties have stated their case.

Mediation differs from the traditional litigation process because the parties and their mediator are in control of the mediation process. Both parties have a say in deciding when and where the mediation takes place, in addition to determining who will be present, how mediation fees will be paid, and how the neutral third party can interact with the parties.

Who Should Seek Mediation?

Mediation is an option for everyone and generally the most successful for parties that are willing to negotiate or are not too far apart in terms of their disagreements.  

If you are gearing up for a divorce with your partner, and the two of you agree on how to approach child custody arrangements and splitting up assets, mediation is a great way to save money, avoid lengthy trials, and ultimately reach a mutually favorable resolution.

If you are far apart in terms and not on speaking terms with the opposing party, mediation is still an option.  Both parties do have to agree to attend mediation, unless there is a court order requiring it.  Regardless, mediation can still be very beneficial with an experienced and dedicated mediator.  You do not have to be in the same room for mediations.  The mediator often will float back and forth from room to room, especially when parties are unable to communicate.  It is not uncommon for parties who have extremely different terms to leave with full or partial agreements.  An example of a partial agreement is maybe you end up agreeing that the house needs to be sold, but you do not agree to how the proceeds are distributed.  The mediator will then draft up what is called a CR2A Agreement stating that the parties agree for the house to be sold and help you figure out how to accomplish that and then place the funds in one of your attorney’s trust account until you can agree on the proceed distribution.  Another example would be you agree on a parenting plan, but not child support.  You can leave mediation with partial agreements so that you do have something to build from and focus your litigation and core disagreement instead of all terms.  You can also reach “temporary” solutions.  Mediation is unique and offers many solutions.

Regardless of the type of mediation, it is always best to have your agreements reviewed by an attorney.  

Mediation & Divorce — How Does Child Custody Factor in?

When mediating a divorce outside of the courtroom, many sensitive issues are likely to be discussed by the parties in front of a neutral mediator. One of the most sensitive issues that is commonly discussed in mediation hearings is child custody arrangements. It’s recommended that anyone who is preparing for a child custody mediation should hire an attorney to ensure that a favorable result is obtained. During child custody mediations, the parties present their proposed custody arrangements to the mediator, who will identify contested issues that the parties must discuss in-depth as they attempt to find a mutually-beneficial solution. If all goes well, a custody agreement will be drafted and signed at the end of the mediation process. In the unfortunate event of no agreement, the negotiations and documents supplied in preparation for mediation are protected by Evidence Rule 408 and not to be used in litigation whatsoever. This allows both parties to speak freely and negotiate because nothing can be used against them.  

Contact Envision Family Law for Help With Mediation

Are you currently going through a divorce with your partner, or have you been considering filing for divorce for some time? If you believe that your partner would be on board with your preferred approach to child custody arrangements, splitting up assets, and other major aspects of your divorce, mediation could be an ideal option for you. If you are still unsure whether you should go with mediation or some other method of reaching a resolution, contact Envision Family Law today to consult with a lawyer about your situation.