Getting Ready for Mediation in Your Divorce or Custody Case

By Michelle L. Searcy

Whether you are involved in a divorce (dissolution of marriage), child custody (allocation of parental rights), or modification family law case, you will be encouraged, if not ordered to participate in mediation. In mediation, the mediator will work with you to try to resolve issues through agreement. This confidential process gives you and the other party an opportunity to control the outcome of the case by reaching an agreement instead of having a stranger decide for you. You may not resolve all of the issues. Even if you are only able to reach agreements on some issues, it will help you pare down your court hearing time to focus on the issues that truly cannot be settled.

As a family law attorney, I have represented many clients through the mediation process. Mediation does not always result in a successful outcome. Often, I have heard clients express the opinion that mediation wasted time and money. This article will help you avoid that feeling by focusing on ways to get the maximum benefit from mediation. That said, mediation can frustrate the parties because the mediator lacks the authority to make either party agree to anything, or make decisions. Some mediators apply pressure to the parties with the hopes of encouraging compromise. It helps to keep in mind that the mediator’s judgment does not necessarily reflect the analysis the court may make when assessing a case.

As in most professions, mediators vary in the quality of the services they provide as well as the associated cost. You have a right to participate in choosing a mediator. If you cannot reach an agreement for a private mediator or cannot afford the cost, mediation will take place through the Court’s mediation services, the Office of Dispute Resolution (ODR). The cost for ODR is far lower, currently $75 per hour per party, with a two hour minimum, than the cost of most private mediators.

As your mediation date approaches, you need to be prepared for mediation. Your financial disclosures should be complete and updated, as should the other party’s. Regardless of the issues, you should think about a range of outcomes that you could find acceptable. At the start, you should ask for what you want, maybe a bit more. Negotiations are expected, so if your first offer is your bottom line, you have nowhere to negotiate. That said, you should know going into mediation what your bottom line is. Part of this preparation includes going through various scenarios or outcomes with your divorce lawyer.

A good mediator will identify the issues where agreement is most possible and will start with those issues. For instance, you may be able to agree to joint decision-making, holidays and vacations, but not be able to agree on regular parenting time. Another example is that you may agree on a 50/50 division of marital property in your divorce, without an agreement on who keeps what asset in dividing the property. There is a certain momentum that accompanies reaching some agreements, which creates a good deal of pressure to resolve the other issues. If you enter into the negotiation already knowing the least you are willing to agree upon, you will be able to avoid reaching agreements that you later regret.

Knowing your bottom line, however, is different from being inflexible. To have the greatest chance at a successful mediation, you may need to have some flexibility to how the settlement is structured. If you have already determined your bottom line, you should have also already prioritized your desired outcome. Thus, if keeping the marital home is a top priority, you may need to be flexible on the division of other assets.

Also, you should know before mediation whether you are willing to agree to a partial settlement. Since you have already determined what you are not willing to surrender in the negotiation, you may not be able to resolve all issues. If you are able to reach agreement on some, but not all issues, you may opt to submit a partial agreement to the court, while still asking the court to resolve those issues where there is no agreement. This benefits you because you will have more valuable court time to present evidence on those issues. If you fail to leave mediation without an agreement, even a partial agreement, the other party may no longer agree on the items you believed to be resolved. Thus, it is important to try to leave mediation with any agreements memorialized in writing. Mediation is confidential, so you will not be able to present evidence that those issues were resolved at mediation without a signed Memorandum of Understanding.

It may not always be possible to resolve your case through mediation, but it is worth trying to do so. It empowers you to control the outcome. It costs far less than litigating in court, and will take less time. It could provide a better opportunity for a future with less conflict. It may allow you to spend your time with the court focusing on issues that cannot be resolved. If nothing else, it will provide you insight into what the other party thinks about the issues and what arguments that party may make in at your court hearing.