What is mediation?
Mediation is required in any domestic case (whether divorce, custody, or parenting plan modification) when the parties cannot reach an agreement on their own or through their attorneys. The two lawyers in the case generally chose a mediator who has experience in the type of case you are mediating.
How does it work?
At mediation, you and your attorney (if you have an attorney) will be placed in one room while the other party and that party’s attorney will be in another room. The Mediator will go back and forth between rooms trying to help the parties reach an agreement.
The Mediator is neutral and can help provide insights into what a judge might do in your case. If a settlement is reached at mediation, the Mediator will type the terms of the settlement up and the settlement agreement will be signed by both parties and their attorneys. The lawyers will then prepare a more formal court order from the mediated agreement and the case will then be over.
You should prepare for mediation.
Prior to the mediation, it is important for you to spend time thinking about what you want from mediation. It is a good idea to think about those things that you must have to settle the case, and those things that you want, but may be willing to give up, to settle the case. To settle your case at mediation you will have to be willing to compromise. No one receives everything they want at mediation. To settle your case, you will have to be willing to give and so will the other party.
Everyone has an incentive to compromise at mediation because if you go to court, there are always risks. Those risks include the risk that the judge sees things differently than you or that the judge believes the other side even if the other side is not telling the truth. These risks can be avoided if you can settle your case at mediation even if that means SOME compromise.
Below are some important rules that apply at mediation:
1. You must attend and participate in mediation. It is required by the law.
2. When you discuss things with the Mediator, he or she cannot share any information you provide with the other party unless you specifically tell the Mediator that the information can be shared. Everything discussed in mediation between you and the Mediator is confidential unless you choose to share it with the other party.
3. If you do not settle the case at mediation and go to trial, the judge will not know what happened at mediation. No one will be able to discuss in court who offered what at mediation or why the case did not settle. The only information the judge will be told about a failed mediation is that 1) the parties participated, 2) that the mediator was paid and 3) that the case did not settle at mediation.
4. No one can call the Mediator as a witness at trial if the case does not settle, because everything the Mediator learns at mediation is confidential.
5. While you should listen to the Mediator at mediation, as the Mediator will have insights that you don’t have, and you should listen to your attorney at mediation, the ultimate decision on whether a case settles at mediation lies with you. You are the decision-maker at mediation.
If you have a domestic case that requires mediation, Attorney Chris Pittman is a Rule 31 Listed Family Mediator who has mediated over 1,500 cases and is available to assist you with either an in-person mediation or a remote, Zoom mediation.