By: J. Alex Jacobson
Founder, Mediator — Jacobson Mediation Group
- What is divorce mediation?
Divorce mediation is an alternative route to address matrimonial and family law matters outside of the courtroom. I view it as an opportunity to craft an agreement that is narrowly tailored to the needs of a particular family in a confidential, non-adversarial, more amicable environment. A mediator works with the parties to navigate the conversation addressing the points necessary to reach a final Judgment for Dissolution of Marriage. The conversation may take place with everyone together in the same room, with the parties in separate rooms and the mediator shuttling in between, or a combination of both. The mediator is not an advocate for either party. Rather, the mediator’s role is to help the parties get to yes by identifying issues to discuss, providing perspective on the strengths and weaknesses of each party’s position on those issues, and hopefully getting the parties to compromise to a point where an agreement can be reached. When successful, mediation is a more efficient way to resolve a divorce case both from a time and cost perspective.
- Why mediate?
Believe it or not, it is possible for even high conflict cases to reach a resolution outside of the courtroom. The benefits of doing that include that the parties will be in a better position to co-parent after the divorce is finalized, the agreements are more comprehensive and fitted to the needs of that family, financial and emotional resources are preserved, and the parties often feel more satisfied with the end result.
- When to consider using mediation?
Ideally, people are turning to mediation at the beginning of a case to streamline the process and maintain a greater sense of calm in the case. In many courts, parents must attempt mediation to address any parenting issues before they are able to get a hearing or trial date. Mediation is also useful at the beginning of a case to address immediate, temporary issues while completing discovery necessary to address a global settlement. Often, mediation is also used as a last ditch effort to try to reach a resolution on the eve of a trial. Lastly, mediation can also be used after the divorce is finalized when issues arise such as a modification of support, modification of parenting schedule, or the allocation of college expenses.
- Who participates in the mediation process?
Parties can participate in the mediation either with or without the assistance of counsel. Often, people find that they are well-equipped to handle the parenting-related issues without attorneys present which keeps the cost down. However, when it comes to financial issues, unless both parties are well-versed in their finances, it is often useful to have attorneys present.
- What happens after the mediation ends with a complete agreement? What happens if the mediation ends with no agreement?
The mediator will prepare a comprehensive memorandum of understanding that details the terms of any agreements reached. Ultimately one or both of the parties will need to involve an attorney to put that memorandum in the proper form for a judge to enter it as an order of the court. Regrettably, some cases are not well-suited for mediation, and the parties are simply unable to reach an agreement. In those instances, you are then left with going to court to have a judge rule on the issues. However, not all is lost because in the mediation process you likely will learn the other side’s position on certain issues and be able to better prepare how you will respond to those issues. You will also learn the strengths and weaknesses of your own case and be better equipped to manage those.