Mediation of divorce cases has become very common over the past couple of decades. Most family law attorneys would agree that as long as a reasonable resolution can be reached, it usually provides a better outcome for everyone involved as compared to a trial. Most people getting divorced have heard of mediation but don’t really know what it means, or understand the process.
Here are answers to three of the most frequently asked questions I get about mediation.
1. Will the Mediator Hear Evidence and Make a Ruling like a Judge?
Mediators are not judges and they do not make rulings. A mediator is an objective third party whose job is to facilitate negotiations, and attempt to help the parties reach a mutually agreeable settlement of all issues in the case. The mediator has no authority to make either party do anything. If the parties reach an agreement, a binding Mediated Settlement Agreement will be prepared and signed by all parties and attorneys.
2. Isn’t Mediation Expensive?
Mediation does have some costs involved. The mediator charges a fee, usually a per-party fee based on whether it is a full day or half day mediation. Presumably, each party is also represented by an attorney and the attorney’s hourly rate will apply for time spent at the mediation. So yes, mediation does have a cost and it would be is less expensive if the parties were able to work out a settlement without having to attend mediation. But this is often not a realistic possibility.
Usually the issues are too complicated for the parties to work out fully, or they have tried and have been unable to reach an agreement. For those cases, the cost of mediation could be the best money you ever spent. This is because if you are unable to settle your case, then ultimately a trial will be necessary. Anyone who has ever experienced a divorce trial can tell you just how expensive and frustrating that can be.
3. Will our Mediation Discussions be Part of the Court Record?
All communication in mediation is confidential. In most jurisdictions there are rules that prohibit either party from calling the mediator as a witness at trial or even using any of the negotiation dialogue as evidence at the trial. The purpose of confidentiality in divorce mediation is to allow the parties to freely discuss negotiation possibilities. Neither spouse will need to worry about whether they are harming their case at the courthouse, should the mediation fail to result in a settlement.
For most people going through a divorce, mediation is an option that should be considered. As discussed above, advantages of mediation include a mediator whose sole job is to help the parties reach a binding settlement, the process is relatively cheap as compared to going to trial, and the mediation process is entirely confidential and will not harm your case in any way, even if you don’t reach a settlement.