At mediation, the parties meet with an individual skilled in dispute resolution, often a family law attorney, a mental health professional or a business person. Michigan now requires mediators appointed by the court to complete a 40-hour domestic relations mediation training course, as well as observe a few mediation sessions for certification. However, parties can choose most anyone they trust and agree upon to act as a mediator.
Mediation is most often conducted a few weeks into the divorce process, after there have been some negotiations. The court may have already entered temporary custody and support orders. Often both parties are represented by counsel, and the attorneys appear at the mediation. Attorney participation can be helpful, provided the lawyers recognize their role in mediation is that of legal advisor and not so much an adversary.
Because mediation is a confidential settlement negotiation, nothing said or produced there is admissible as evidence in court. This gives the parties freedom to discuss their positions and explore possible solutions without fear that something they say can come back to haunt them if mediation is unsuccessful and the case ends up going to trial. Neither party can call the mediator as a witness at trial. There are exceptions to the confidentiality rule in cases of abuse, neglect or criminal behavior. If the mediator learns of this, he or she may be obligated under the law to report it.
Early stage mediation may take place when the parties have not yet hired attorneys but have decided that they are ready to divorce and want to avoid the adversarial trial process. They may be unable to afford attorneys and may desire to resolve their disputes in a more cooperative setting. Pre-filing mediation can be effective, especially if the mediator is well-versed in domestic relations law. While the mediator cannot give legal advice and must maintain neutrality, he or she can provide information, such as a review of the child custody factors or calculation of child support under the Michigan Child Support Formula. If the parties are successful in resolving a case through early stage mediation, they can work with an independent lawyer who can prepare a judgment of divorce based on the settlement agreement. Ideally, both parties will have attorneys review the settlement agreement before it is incorporated into a judgment of divorce.
Most attorneys feel it is unethical for an attorney to represent both husband and wife in a divorce. If the mediator refers the matter to an attorney for preparation of the judgment of divorce after mediation, that attorney may act on behalf of one party or the other and recommend that the opposing party retain his or her own attorney to review the judgment once it is prepared. While this may cost a few hundred dollars, the peace of mind that will result from both parties having their own counsel is well worth the investment.
Mediation can be formal or relaxed, depending on the mindset of the parties and the style of the mediator.Ideally, they will submit financial, asset and debt information, as well as information on the parties’ proposed parenting schedules and the children’s needs in advance of mediation. This may be done through a questionnaire or by meeting with the parties. With late stage mediation, the parties may have previously prepared asset spreadsheets for their attorneys, which can be provided to the mediator. The mediator should have the parties sign an agreement regarding fees, the mediation process in general, and confidentiality.
Some mediators prefer to conduct a conference call in advance to discuss general procedures for mediation, fees, and confidentiality. If attorneys are involved, the mediator may ask them to participate in the initial conference. Attorneys can be very helpful at mediation if they recognize that the process belongs to the clients and do not try to take over. The mediator will encourage the parties to do their own talking, in order to instill a sense of ownership in the process.
At the first mediation session, the mediator will gather all necessary information and in many cases ask the parties to make an opening statement. The mediator may ask open-ended questions in order to facilitate discussion gain an understanding of the parties’ expectations for mediation and their respective positions. If the parties’ positions are diametrically opposed, the mediator may start by trying to find common ground. For instance, if both husband and wife come to the mediation saying they want sole custody of the children, the mediator may begin by defining interests and common goals and placing the focus on the child’s needs, rather than focusing on positions. If the mediator can assist the parties in coming to an agreement on some basic principles, for example, that they are both ultimately concerned about the safety and well-being of the children, things can begin to move in a positive direction.
Mediation should be solution-focused, rather than a time to air grievances. Some people want to use it as a platform to speak their mind, which in some cases can help people get things off their chests and move the process forward. Some mediators will tolerate or even encourage emotional venting, while others are quite uncomfortable with it. There are instances where, after one of the parties voiced hurt and anger to the other over past conflicts, they exchanged heartfelt apologies, which allowed them to put aside their hurts and move forward with a solution they both felt was in the best interest of the children. Other times, when the parties have tried to address their hurt and frustration, it has led only to escalating argument and resulted in a failed mediation. Each case is different, and whether emotional issues are explored at mediation will depend largely on the comfort level of the mediator and the parties. In some cases, it is best for the parties to discuss emotionally charged issues with a counselor, allowing mediation to remain focused on solutions.
Mediation may prove successful in resolving some, but not all, of the issues in a case. If this is the result, the mediator can put together a partial settlement agreement and report to the court which issues remain unresolved. While people usually prefer to reach a complete resolution, if that does not happen, a partial resolution can help define the issues for trial and assist the parties and the court in focusing on those issues worthy of the court’s time.
In some cases, mediation takes place over a series of meetings that can extend for weeks or even months.In cases with a variety of assets, business interests, or debts, information gathering and valuation of assets can consume considerable time and require the involvement of third parties, such as business valuation experts or accountants. If the parents are working toward an agreement on custody and parenting time issues, they may need feedback from a counselor outside of mediation in order to explore the children’s desires and needs before they feel comfortable reaching an agreement.
If a complete resolution is reached, there will be no need for a trial, but the plaintiff in all cases is required to go to court and request entry of a judgment of divorce in conformance with the mediation agreement.
© 2021 Thomas C. Kates, Attorney and Mediator