Mediation is a common way for disputes to be resolved outside of family court. Most cases are ordered to mediation for no less than two (2) hours for the parties to a divorce or custody case to make a good faith attempt to resolve their issues before using court time and resources.
Mediation provides more flexibility than court in most instances and has many benefits, but you may want to be aware of the following information to help you prepare for your mediation session:
- The mediator, usually a former judge or an experienced attorney, cannot force, make or require you to sign a settlement agreement. The mediator is a neutral person who assists parties in negotiations. The mediator cannot disclose any information to the Court other than whether a full or partial agreement was reached, and this is usually done by the filing of a simple report after the mediation.
- If you and the other party reach an agreement on some or all issues, a written agreement will generally be prepared for your signature at the conclusion of the mediation session. If you sign an agreement at mediation, you will be bound to the terms. The Court will accept the agreement and will not allow either party to withdraw his/her consent or modify the terms of the agreement. Typically, the mediated agreement will be entered by the Judge in your case as a Court Order. Failure to comply with the terms of such a Court Order, can warrant contempt sanctions against the party who fails to comply.
- Depending on the issues in your case, a Court may be allowed to modify the mediated agreement in the future under certain circumstances, particularly in dealing with family law (divorce/custody) issues, e.g., child support, custody, visitation. Be sure to discuss with us prior to mediation, the types of issues which could be modified in the future and the legal requirements for modification. In addition, laws change over time and such changes may effectively modify your agreement. It is not possible however, to foresee the future and the changes which may occur. Thus, there is some prospective uncertainty to any agreement reached in the present.
- During mediation, you may need advice from another professional, such as, a certified public accountant, tax preparer, mortgage broker or realtor. As an attorney, we cannot give you advice in other specialized fields. It may be prudent for you to contact one or more of these professionals, in advance, and arrange for a telephone conference, if necessary, during mediation. Please contact us if you have any questions regarding this. If professional advice is necessary, but unavailable to you during mediation, you have the right to delay signing any agreement in order to obtain the required advice or information.
- In order to be prepared for mediation, you should be well-rested and free from the influence of any mood or mind-altering medications.
- Come prepared to compensate the mediator for his/her time in helping you negotiate your case. Usually the Court will order the parties to divide the expense of mediation equally or proportionally prior to mediation being scheduled.
- Since mediation can be very stressful, do not plan to skip nourishment before or during mediation. Your decision-making ability depends on your physical and emotional well-being. Take appropriate steps to be as comfortable and at ease throughout the process as possible.
- If you are responsible for the care of others, i.e., children or pets, make arrangements for their care in advance as mediation sessions may last longer than anticipated.
- You are under no obligation to settle your case during mediation. It is natural for each side to feel pressure during mediation as the mediator does his/her job. If a mediated agreement is signed, it will be your decision. Neither the mediator, us or any third party can compel you to settle your case. Do not sign a settlement for any reason other than you want to do so.
- If a mediated settlement is reached in whole or in part, you will generally be precluded from obtaining discovery or other information regarding the settled issues. Thus, if further information/documentation is desired by you on an issue, you are responsible raising this issue and discussing it fully with us prior to signing any agreement.
