Mediation can be a good option for people who want to settle out of Court, control how their case is resolved, and who can treat each other with courtesy and respect despite their pending divorce. In this process, the divorcing parties hire a neutral mediator, who will work with them in a series of informal meetings to try to reach agreements out of Court. Mediators are trained in conflict resolution, and cannot represent either party or give either party legal advice.
One of the main advantages of mediation is that mediation clients have more control over their cases than litigation clients do. Mediation clients decide what issues will be discussed, and whether additional experts are needed to help resolve their case, such as business valuation experts or child specialists. Because the case is outside of Court, mediation can lead to creative solutions that benefit both parties and that are not limited by what a Judge would do.
Mediation is private and confidential. Mediators cannot be called to testify if the case later goes to Court, and what is discussed during mediation sessions cannot be used later in litigation. When a case is heard at Court, often other people are present in the Courtroom, and the proceedings are a matter of public record.
In mediation, it is often much easier to obtain information and documents than it would be in a litigation case. Both parties have equal access to all information and documents. Exchange is informal, based on simple verbal requests, as opposed to formal discovery processes such as subpoenas and depositions that might be used in litigation.
Mediators can give general legal information, but cannot give legal advice. Clients are strongly encouraged to seek independent legal advice, including the option of retaining a consulting attorney to advise them as needed during the case. As is standard in mediation cases, I require that all mediation clients have proposed final documents reviewed by independent legal counsel before the clients sign and finalize those documents.
Mediation can take much less time than litigation. It is easier to schedule a three-way meeting with two clients and a mediator than it is to go to Court. Because clients are talking directly to each other during mediation sessions, communication is easier, faster and cheaper than when they are speaking to each other only through their respective attorneys.
A mediated case is often much less expensive than a litigation case. The clients generally split the mediator’s fees. Even when consulting attorneys are retained, their retainers tend to be much lower than those charged by litigation attorneys, as the consulting attorney will not appear in Court. Additional experts are not hired unless the clients agree. In litigation cases, experts are often appointed by the Judge, over the objection of one or both parties. All decisions in mediation are made jointly, rather than being imposed by a Judge.
Mediation also has some disadvantages. If the two parties cannot speak civilly to each other, mediation will not work well. Consulting attorneys generally are not present during mediation sessions, so parties need to be able to state their point of view and ask for what they want. Although every effort is made to defuse emotional issues, sometimes the discussions can be difficult. Parties get less emotional support in mediation than in collaborative divorce, as there is no mental health professional in the room during the discussions. If there is a significant power imbalance, I try to address it by full exchange of information, recommending the use of consulting attorneys as needed, and any other feasible options. However, it is sometimes difficult to completely level the playing field without the help of other experts, who are often not in the room during mediation. The best clients for mediation are therefore those who can speak for themselves, are willing to seek out information they need, and who can deal with the other party with mutual respect. Clients who are unable to speak comfortable with the other party, who feel there is a large imbalance of power, or who are dealing with significant emotional issues involving their divorce may want to consider other options besides mediation.
When I mediate, I meet jointly with both parties. I do not have separate conversations, as that would compromise my neutrality. We discuss what issues are important to each party, and plan which to address first. The parties set the agenda. We arrange for a full and free exchange of information and documents, including but not limited to the required Preliminary Declarations of Disclosure. After each meeting, I send the parties a Summary Letter, setting forth the discussions, agreements reached, remaining disagreements, tasks to complete prior to the next meeting, and the agenda as well as date of the next meeting. I prepare pleadings necessary for the divorce action, with the parties agreeing on everything in the pleadings. Once full settlement is reached, I prepare the final documents, and require that the clients have these documents reviewed by consulting attorneys.
In addition to serving as a mediator, I also provide services as a consulting attorney for clients who have a mediator but need independent legal advice. This can range from a one-time appointment to being retained to serve throughout the case. Clients who are seeking a consulting attorney should choose one who has mediation experience and is supportive of the process.