A: Mediations are not all the same, but most of them follow a general format that is somewhat predictable. If your attorney was involved in choosing the mediator, which is usually the case, he or she is probably familiar with the mediator’s style, and can walk you through what to expect.
Most mediations are somewhat informal. Ideally, the mediator will have at least two, preferably three, rooms available. When I serve as a mediator, I like to have a general session with both parties and their attorneys together in the same room. However, if you are not comfortable being in the same room with your spouse and his or her attorney, let your attorney know that. There are of course advantages to all being in the same room, the most important of which is that it is most time efficient. Requiring the mediator to shuttle back and forth between rooms can be rather time consuming. You will probably be required to sign a mediation agreement in advance which sets out general ground rules and the fee structure. If you have not seen this prior to the mediation, ask your attorney to send it to you. You may be required to pay a retainer up front before starting mediation.
In the initial session, the mediator will probably set out ground rules, the most important of which is that the parties are expected to be civil with one another and not interrupt when another person is talking. The mediator will also discuss confidentiality concerns. The court rules provide that a mediator cannot be called as a witness at trial, and that mediation proceedings are confidential. In other words, what is discussed at mediation cannot be used as evidence at trial.
Most mediators request that the attorneys present a summary of the case prior to mediation. It is helpful to provide the mediator with copies of any temporary orders and a spreadsheet of assets and liabilities prior to starting mediation. If your attorney intends to submit one, ask to review it before it is filed with the mediator. If you are involved in a child custody case, the mediator should see the custody evaluation, and any other materials regarding the children. If parenting time is at issue, provide your attorney with a proposed parenting time schedule. If you have debts, make sure you are on top of just what is owing and by whom. It is a good idea to run a credit report so you know exactly what your liabilities are. This includes credit cards, car payments, and mortgages. If you can, run bluebook value on all vehicles in advance of mediation so you have an idea what they are worth.
If your attorney is doing his or her job properly, you will see that he or she wears a different hat at mediation than in the courtroom. The goal of mediation is dispute resolution, not winning. You will be asked to concede certain things that you might not want to give up if the case ends up going to trial. The process of mediation is about compromise, and in the end, if mediation is successful, both parties will feel like they have given up some things and met in the middle. Don’t expect your attorney to do all of the talking. Mediation should be centered on the parties, not the attorneys. This is not a time to raise attacks against the other party's character, parenting style or financial habits. It is instead an opportunity to look for solutions to the conflict.
After explaining the ground rules and answering any questions the parties may have regarding the general process, most mediators like to spend time with the parties individually, sometimes in private, to hear their concerns and get a general idea of their relative positions. A good mediator will seize upon the opportunity to identify those issues that the parties can agree on. Issues such as division of personal property can often be readily resolved if the parties appear at mediation with a detailed personal property spreadsheet and proposed division.
Some mediators like to tackle the easy issues first so that the participants can feel a sense of progress and working together.
At first you may feel like you are not getting anywhere. But if you persist in the process, you may find that you first begin to agree on small things, and eventually on the larger ones. Once you begin to reach agreement on any issues, the mediator will begin drafting a mediation settlement agreement, which may address all the issues in your case, or in the event you do not agree on everything, just those issues on which you have reached agreement. Remember, once you sign a mediation agreement, it is a binding legal document. If you do not feel comfortable signing the agreement at mediation, or if you feel pressured for time, ask your attorney if you can take the agreement home and sleep on it for a day or two. Once an agreement is signed, it is difficult to convince the court to set it aside. Because mediation is sometimes a lengthy process that can last for a full day or longer, parties are usually tired and stressed by the end of the day. If you are feeling overly stressed, ask your attorney to allow you some time to mull over the agreement before you sign it.
If you are successful in reaching a complete resolution of all issues in your case, the attorneys will then work together to put the agreement into a final judgment of divorce. If you are successful in resolving only some of the issues, that can also be a good thing, because it can narrow the scope of issues to be tried by the court and allow you to focus on the real issues in dispute. At the very least, even if mediation does not resolve all of the issues, it allows the parties to explore one another's positions and can be an invaluable exercise in evaluating the issues and preparing for trial.
For more information about mediation, please see the Mediation section of our website.
For more information about the mediation process, please see the Facilitative Mediation Process section of our website.
© 2020 Thomas C. Kates, Attorney and Mediator