How Does Mediation Work?

How Does Mediation Work?

Dear Attorneys,

I am ready to get a divorce, but my husband would rather go to a mediator than hire an attorney. He says it will be more cost efficient, but I’m not sure that I understand what mediation is or how it works. Can you explain this to me?

Sincerely,

Mulling Mediation

 

Dear Mulling,

You may be right to hesitate in pursuing mediation. While our attorneys also serve as mediators, a mediator cannot, and does not, represent your interests.  Nor can he or she advocate for you.  Rather, mediation is the process of working with a neutral third party who will try to help both parties reach a mutual agreement.  He or she may work to make the agreement equitable, but not only can the mediator not provide either party with specific legal advice, but he or she also may be unaware of issues if you, or the other party, do not bring them up.  Mediators may ask you to fill out a questionnaire and provide certain financial documentation.  Then, the mediator will schedule a few meetings with both parties present and work with you both to try to reach an agreement. If an agreement is reached, the mediator will draft the agreement and submit it to the court prior to your uncontested hearing.  Some courts want mediated agreements submitted one week in advance of an uncontested hearing in case the judge has any questions for the mediator.

While mediation can be a great tool, we always encourage clients to have his or her own attorney, in addition to the mediator, so that a client can ensure that his or her interests are represented. That is probably the most thorough, and cost effective approach. However, if both parties are represented by an individual attorney and then jointly retain a mediator, you are still ultimately paying for three (3) attorneys out of the marital “pot.”  Therefore, we often encourage clients to try to negotiate first, and/or utilize the Family Relations Office at the courthouse (which offers a mediation program for free) prior to retaining a mediator.

Your own attorney will advocate and negotiate on your behalf, whereas a mediator will only take into account what you want, relay it to your partner, and then try to reach an agreement (and he or she will do that for each party).  Often, unrepresented parties who use a mediator don’t address issues because they aren’t aware of them and the mediator did not know they were an issue for the parties either.  Sometimes, that results in a post-judgment matter to open the underlying dissolution agreement.

While it is entirely up to you, Wolf & Shore Law Group always recommends that parties seek individual counsel in their divorce. If you feel as though you need a confidential consultation, please do not hesitate to contact us! We would be happy to assist you.

Very Truly Yours,

Wolf & Shore Law Group 

 

*The situations represented in our Dear Attorneys column are entirely fictional and any resemblance to a specific case is unintentional. We cannot, and will not, offer legal advice to anyone who is not a client. However, if you do have questions or concerns, you should contact an attorney at your convenience.

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