Should I consider mediation of my family law matter?

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By John Jones, Esq.

Absolutely! Mediation is a wonderful alternative to litigation. As I say to my mediation clients “Don’t let the marriage made in heaven become the divorce from hell!”

It is important to understand that “mediation” is a word of art – it has a special meaning. Most folks are familiar with “arbitration” and frequently confuse the two procedures. Arbitration is more like a judicial proceeding. The arbitrator selected by the parties hears testimony and the arguments of the lawyers and then makes a decision. That decision can be binding or not, depending on what the parties agreed to before the arbitration started.
Classic mediation is a process in which the mediator uses his/her skills, training and experience to assist the parties to reach their own agreement. The mediator does not make recommendations, give his/her opinions or advice or decide what is good for the parties. There are some mediations, however, where the parties agree that the mediator can be more involved; giving opinions and “steering” the process more than in the classical mediation.

Even though any agreement reached by the parties does not have to be what a judge would do under the law, it is important for each participant to know what is or is not appropriate to ask for. Therefore, it is very important for the parties to have some understanding of the law. That is typically done by attorneys, who are consulted by each party beforehand As long as both parties feel an agreement is fair and adequate for each of them for their own reasons, knowing their options, the mediator has done his/her job.

Each mediation moves at its own pace. Each party pays one-half of the cost of the mediator, based on his/her hourly rate, at the end of each session. Most mediators ask for a retainer from each party, to cover time spent by the mediator outside of session time. For instance, in reviewing documents or preparing memos.

At the end of a successful mediation, the mediator will prepare a “memorandum of understanding,” which sets forth the bare bones agreement of the parties. It is then up to the parties’ lawyers to reduce that to a formal agreement. However, if there are no attorneys, many mediators will prepare the final agreement.

As with any other legal process, when you consult a family law attorney, you should discuss mediation and get a thorough understanding of the entire process.