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Mediation is a party driven process, as such, the parties will need to be involved as much as possible. Expect the mediator to ask you questions about your interests and how you may achieve them. A typical mediation works like this: After the parties agree to mediate they will contact a mediator for a mediation date. The mediator may have some initial questions for the parties to answer before the parties meet for mediation, done either over the phone or on forms received by email or mail, such as place and special accommodations for the parties. The mediator will screen for conflicts that would make him or her unable to maintain neutrality. If no conflict exists, a week or so before the mediation the mediator will confirm the appointment with the parties and may send them a copy of the agreement to mediate. On the day of the mediation, the parties will meet in a designated place (mediation office, attorney's office, etc.). The parties will initially meet together with the mediator to discuss the mediation process, the mediation agreement, and the issues the parties wish to discuss during the mediation session. The mediator will try to keep the parties in the same room for negotiations unless the parties are uncomfortable with that arrangement or if the mediator sees an advantage to separating the parties. If the parties come to an agreement, then the mediator will write a Memorandum of Understanding that the parties may make binding. If the parties do not make any sort of agreement, then the parties will end the mediation. If the parties have not paid for the mediation up front, then after the mediation, the fees will be collected.
The best way to prepare for mediation is to consider what you want out of the mediation and what you are willing to live with for an agreement to your dispute (best case and worst case scenarios). Additionally, knowing your alternatives to coming to a mediated agreement is very helpful. The more information you can provide and disclose in the mediation, the more likely the parties are to get an agreement that will be honored by the parties. While the mediator does not need to see evidence, having copies of agreements, financial statements, communications, or other applicable documents to the dispute readily available may be helpful. Seeking legal or other professional advice, such as tax or financial, is always recommended before the mediation so the parties can make the best decision in the mediation. Mediators are also receptive to receive a written statement about the dispute and what the party is seeking before the mediation, this is called a mediation brief. Below are a few templates that may be helpful in preparation of your mediation.
Prepare for mediation just like any negotiation or trial. Of course the more prepared you are, the better it is for your client. Ensure that your client is familiar with what will occur in mediation and discuss with them their case, its strengths and weaknesses, key evidence, risks, and alternatives to a mediated agreement. Writing a mediation brief and submitting it to the mediator before the mediation date may also be helpful.
You do not need a lawyer to mediate. However, it is important to remember that the mediator does not give legal advice and thus it is recommended that the parties seek legal or other professional advice before signing a binding agreement.
Since mediation is a flexible process, anything the parties feel is important can be discussed in the mediation. For a full legal divorce, the following topics are discuss, based upon the parties' situations: Parenting agreement including time sharing of children (regular schedule, holidays, vacation, etc.) and decision making responsibilities (health care, education, etc.); financial support (child and spousal); property division including debts, and tax issues.
All of the following are examples of domestic mediation issues which may be discussed in mediation: Legal Separation Agreements; Temporary Separation Agreements; Marital Agreements (Premarital and Post Marital), Cohabitation Agreements; Domestic Partnership Agreements; Parenting Agreements (Child Custody); Temporary Agreements; Support Issues (Child and/or Spousal); Move-away issues; Modification of court orders; Tax considerations; Division of assets and debts; and Family Business Disputes.
The above are common issues which may be brought up. Before and during the mediation, the parties have the opportunity to bring up whatever issues they wish to discuss in mediation, unlike going to court where court rules and the judge's discretion dictates what is addressed.
The mediator is a neutral third-party. He or she will assist the parties in communicating, negotiating, and understanding consequences. The mediator does not give legal advice or any other professional advice. The mediator is NOT a judge and will not decide who is right or who is wrong. All things discussed in mediation will be kept confidential by the mediator.*
Mediation agreements may be binding and thus enforceable, it is up to the parties to decide. Parties are encouraged to seek legal or other professional advice before signing a binding agreement. If the parties do come to an agreement the mediator generally writes a Memorandum of Understanding that outlines what the parties agreed to. This document is generally binding only when the parties choose it to be. The mediator may write a binding agreement in mediation if both parties have legal counsel present.
Mediation may still occur even if parties feel that they cannot be in the same room. If there is a protective order or other restraining order against any possible participant to the mediation, please provide the mediator with the proper court order. In either situation, the mediator will meet with the parties in separate rooms. The parties need to simply request that they meet in separate rooms and the mediator or administrator will ensure that the request is granted and the arrival and departure times for each party will be staggered to avoid any in-person contact.
Since mediation is a party driven process, both parties need to agree to mediate. The mediator may contact the other party or party's counsel and explain what will occur in mediation and its benefits; however, the choice is always up to the party. In court mandated mediations, both parties need to give mediation a good faith effort.
While mediation generally does not require you to go to court and is an alternative to doing so, in a divorce certain paperwork must be filed with a court to make the divorce final. Parties should seek legal counsel for their particular circumstances and to know what may be needed or they may check with self-help websites such as: http://www.utcourts.gov/howto/family/. If the mediation applies to a parenting plan, parenting time, etc., there may not be a requirement to go to court, depending on the original divorce decree and other factors. In this situation it is again important to seek legal advice from an attorney to understand whether or not court involvement is necessary.
No. The parties do not need to file for divorce first with the court before mediating.
If the parties are unable to come to an agreement in mediation, the next step is up to them. They may go to court, try another alternative such as arbitration, do nothing, etc. When the parties indicate that no agreement is likely, the mediator will discuss with them what their alternatives to negotiating a settlement would be. Then the parties will decide whether or not to end the mediation. In the divorce/domestic arena, the parties will likely prepare for trial, though the parties may come to an agreement anytime before trial.
*By law a mediator may have to disclose certain things, such as unreported child or elder abuse. All such exceptions to confidentiality are addressed in the Mediation Agreement signed before the mediation.