It is very common for clients to have questions about mediation and whether it would be a proper fit for their situation. When discussing mediation it is always important that the client begin with a working knowledge as to what mediation is and how it works.
What Is Mediation?
Mediation is a non-binding alternative to the traditional divorce litigation process where both parties in a divorce or child custody proceeding meet with a third-person who is a trained mediator. During these meetings the mediator assists the parties in working through the disputed issues in their situation with the goal that they will reach an agreement that both parties are content with and also are in the best interest of their children. The issues that the mediator will help the parties work through include child custody, child support, maintenance, property division, debt division and attorney fees.
If an agreement is reached on all issues, the final settlement documents to be submitted to the Court for the Judge's signature are typically drafted and filed by a lawyer who is retained separately from the mediator. While the mediator is often a lawyer, the mediator cannot draft and submit the documents on behalf of either party. Further, while one party is exclusively represented by the lawyer drafting and submitting the final documents, the other party has the option to retain separate legal counsel in review and possible redrafting of the final documents.
The agreements which are reached in the mediation process are non-binding on either party until the Decree/Judgment is signed by the Judge who is presiding over their divorce or child custody matter. This means that either party has the right to change their mind on all or one of the issues previously discussed and resolved with the help of the mediator, until their matter is final through the court system.
When Should I Mediate?
Mediation can be done either before a Petition for Dissolution of Marriage or Petition for Declaration of Paternity has been filed in Court or after the Petition have been filed but before the conclusion of the matter. A mediator can be retained prior to filing and will help you work through your issues until either party decides to file their action in Court.
The mediation process can also be undertaken once the court action has commenced. This can either be done voluntarily or the Judge can order the parties into mediation. Many local jurisdictions including St. Charles and Lincoln Counties have a mandatory mediation program for various types of pending child custody cases. In these jurisdictions, the parties will need to present a good-cause reason to the presiding Judge as to why they should not mediate their particular issue if they do not want to undertake mediation. These reasons generally center on a history of abuse or harassment between the parties.
What Does Mediation Cost?
Mediators are generally paid on an hourly basis. Due to the fact the hourly rates and fee structures often vary between mediators it is important to engage in a written fee agreement with your mediator prior to undergoing the mediation process.
Some jurisdictions may offer a free mediation program for different types of cases. For example, M.A.R.C.H. Mediation (Mediation Achieving Results For Children) currently offers a limited number of hours of mediation for Paternity and Motion to Modify cases in St. Charles County at no cost to the parents. Check with your attorney to see if your jurisdiction offers a free or reduced-cost mediation program.
Is It Right For Me And My Children?
A successful mediation allows the parties to have a greater control over their future through their input in the final terms of their divorce, with hopefully reasonableness in expense. Studies also show that parties who are able to reach an agreement in a civil manner are more likely to accept the agreement and behave in a way, post-dissolution, that has fewer negative implications on themselves and their children.
However for mediation to work, both parties need to be invested in the process. They need to be willing to voluntarily make a full disclosure of all financial assets and liabilities. And, they need to be willing to accept their spouse's point of view and possible compromise on some of their objectives to reach a settlement. Too much animosity by either spouse can often prevent successful mediation. Further, the dynamics of the parties' relationship can often prevent successful mediation. For example, a relationship with a real history of domestic violence is rarely successful through mediation. If these circumstances exist, the mediation process may only serve to increase the financial cost of the divorce as it is not likely to succeed.
When deciding on the mediation process it is critical that you choose a well-qualified mediator.
Mr. Bellon is certified family-law mediator. If you wish to inquire about whether mediation is right for your situation in particular or if you wish to retain Mr. Bellon, please contact our office.
