Most family law courts will require mediation at some point in your case. Usually, mediation is required before Temporary Order Hearings involving child custody and before first trial.
Mediation is defined as:
1. Action between parties to effect an agreement;
2. An intervention in a dispute to resolve it; and/or
3. A negotiation facilitated by a neutral third party.
It is important to note that mediation is different than arbitration. In arbitration, there is a final decision made by a neutral party – very similar to a Judge. Such neutral person will listen to the evidence presented and will issue an Order that you must abide by. In mediation, the only person who can create a final Order is you! In other words, if you decide NOT to make an agreement, that is fine, and if you decide to make an agreement, that is fine too. It is totally up to the parties to make decisions on their cases, with the guidance of their attorneys and the mediator.
When Should You Mediate?
So, when is a case ready for mediation?
First, there must be an exchange of information between the parties so that every party can make an informed decision. For example, before you can make a decision about how to divide property, you must know about all the property of the marriage and the value of each asset. In many cases, one party handles all of the finances of the couple and the other spouse is in the dark about both assets and liabilities.
Second, it is important to come to mediation with an open mind to resolving your matter. Usually, the mediator is a lawyer who is very familiar with family law and the judges in your court. Further, your own attorney will be with you to help you make the best decision possible. And while no one has a crystal ball that tells the future, you should be able to get a feel for what may happen if you go to court and let a judge determine the disputed issues.
Other than being ordered to mediate by the court, the best reason to mediate is to allow you to make the final decision in your case and not the judge. Keep in mind that by the time the lawyers keep out a lot of evidence and the judge limits the time of your trial, the judge will make a critical decision about your case without knowing all of the facts.
You know your situation the best, from your children to your assets and liabilities and you know what is in the best interest of your child. So, why give up your ability to make decisions about your own children instead of a Judge who will not remember your case as soon as it is finished. Such a decision will require compromise with the other parent, but such a decision will also provide certainty as to the final result.
The Mediation Process
Normally, the attorneys will agree to a mediation. Many times, former judges will be used as mediators and there are also plenty of great family lawyers that make very successful mediators. Former Judges are usually are more expensive, but not always. There are also mediators who speak both English and Spanish.
The process usually lasts about four hours and is held at the office of the mediator. You and your lawyer will be in one room and your spouse and his/her attorney will be in another room. The mediator will usually begin with the party that first filed for divorce and will ask questions to get a feel for what is needed for an agreement. The mediator will then go and speak with your spouse. A party can be open with the mediator and can even tell the mediator not to share some details about the case.
Next, the mediator will go back and forth between the parties, trying to get each side to compromise until an agreement is made. If an agreement is made, a “Rule 11” will be drafted that contains the basics of the agreement. The Rule 11 will be signed by the parties, their attorneys and then the mediator will file it with the court.
This Rule 11 agreement is binding on all parties, so make sure you understand the details and don’t be afraid to ask questions. Next, one of the attorneys (usually the attorney for the Petitioner) will draft the final order called the “Final decree of Divorce”. The Rule 11 will now expand from a few pages to over thirty (pages) as the lawyers include the specifics of the agreement.
Is it worth going to Mediation?
YES. The vast majority of cases settle at mediation. And since you can accept or reject the final offer, you control the outcome. Again, there is great uncertainty about what a judge would do in your case and for that reason alone, it is important to try very hard to resolve the case at mediation if at all possible.
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