Mediation - for Divorce and
Other Family Law Disputes
- What is Mediation?
- What Happens in the Mediation Process?
- What Types of Cases May Be Mediated?
- Does Mediating Allow Me to Consult Privately With My Own Legal Counsel?
- Who Writes Up the Mediation Agreement?
- How Does the Mediation Agreement Get Made into a Court Judgment?
- How Long Will Mediation Take?
- Divorce Mediation Process
- Mediation of Guardianship of Children Disputes; Wills, Trusts, and Estates Disputes; and Other Non-Divorce Family Law Disputes
- How Do I Select A Mediator?
Mediation is a method for negotiating a settlement agreement out of court, using a neutral third person to manage direct negotiations between the parties. In mediation, the parties retain decision making power instead of turning it over to an outside authority such as a judge or arbitrator. Usually the parties speak for themselves instead of through lawyers. The mediator facilitates the exchange of information and documentation, identifies the issues, and moderates the discussion to keep it on track and constructive. The mediator educates the parties about general principles of statutory or case law but does not give legal advice in the adversarial sense. Mediation may be used in divorce, child custody and visitation, and disputes over wills, trusts and estates.
The parties to the mediation meet together with the mediator moderating. In the first stage of this process, the mediator ascertains what are the legal issues and the parties' values and concerns related to them. The mediator coordinates the voluntary exchange of information and documents and identifies and reframes the issues by restating them in terms of the underlying concerns and objectives of each party. In this restatement of the issues, the mediator edits out any negative emotions of anger and blame and helps the parties to focus on understanding each other's point of view without expecting either party to give up his or her own position. The mediator helps each party to prioritize his or her concerns and objectives and to compare them with the priority list of the other party.
Next, the mediator helps the parties to generate multiple options for settlement. The mediator will also add options which the mediator knows from experience other people have used to resolve a similar conflict. Then, the mediator assists each party in assessing the pros and cons of each option and analyzing which option meets most of that party's priority needs and goals. Finally, the mediator asks each party to consider in which areas he or she might be able to compromise, while still obtaining enough of his and her objectives and feeling that he or she is not giving up anything essential.
Each party in agreeing to mediate in this model has, from the outset, committed to pursue a result which not only takes care of himself or herself, but also is reasonably fair to the other party. When each party sees and hears the other party sincerely attempting to analyze his or her own proposals in terms of mutual fairness, a cooperative environment develops. Each party is then inclined to be more flexible and able to compromise on some items, allowing the other party to get a reasonable amount of his or her priorities met, provided that the compromising party is also getting the same result for himself or herself.
Even though the pie that the parties are dividing up usually does not get bigger, the solutions are more customized to the personal goals of each party, and each party feels that a "win-win" solution is achieved because their approach to each other is mutually fair instead of "win-lose". This amicable approach does not entirely eliminate the tension inherent in the process of competing for scarce assets. But it does keep the negotiation process rational, courteous, and ethical, and it allows the parties in the process to affirm their dignity and obtain a practical, satisfactory resolution.
Mediation is a highly efficient method for working through a legal dispute. The time spent in communication and organization at the beginning of the mediation process is more than offset by the saved time and money which would have been expended in the traditional adversarial system to conduct formal legal discovery, develop trial strategies, and fight in court.
Mediation may be used to resolve any type of legal dispute. Faith Jansen (also dba Family Law Mediation Center) mediates: (1) marital settlement agreements for divorce or legal separation, for married couples or domestic partnerships; (2) child custody; (2) post-nuptial agreements for couples staying together; (3) pre-marital agreements (also known as pre-nuptial agreements); (5) post-divorce modifications of support; (6) adoption placement agreements and post-adoption contact agreements; (7) visitation agreements in guardianship of minors cases; (8) disputes between family members related to will, trusts and estate planning disputes; and (9) most other family law issues that otherwise would be litigated at considerable expense.
Mediation allows and is compatible with the participating parties having a consulting relationship with an attorney acting as an evaluative legal counselor, to help the party analyze legal concepts as seen from the standpoint of a court, formulate proposals for mediation based on interest-based bargaining principles, and review a rough draft of a proposed written settlement agreement before the party signs it. Depending on the type of mediation, the parties may either see a consulting attorney between mediation sessions or bring their consulting attorneys with them to participate in the mediation. Generally, divorce mediation parties do not bring their attorneys with them to the mediation sessions, but the mediation could be restructured to permit them to do so as long as both parties had counsel. If there has been ongoing court litigation and the parties want to engage in mediation, the parties (and their court attorneys, if any) must agree to suspend the litigation process while mediation is in progress.
Faith Jansen, as mediator, will write up a proposed settlement agreement, as a rough draft, when all the issues to be decided have been discussed in mediation sessions. That rough draft will be provided, with no rush or pressure, to enable each party to carefully review it and confirm that it expresses his or her intended agreement. Each party may ask for corrections or changes to the rough draft, and proposed changes may result in additional mediation sessions or three-way telephone conferences between the parties and the mediator. Each party may see an outside consulting attorney for a private one-on-one appointment to go over the rough draft of the proposed mediation agreement without the other party being present.
If the parties are self-represented, Faith Jansen's legal staff will arrange for the filing of all the pleadings (legal forms) necessary to obtain an uncontested judgment or stipulation for order without any of the mediation parties having to physically appear in court. All court forms filed by Ms. Jansen's office will indicate that the parties are self-represented unless a party has a consulting attorney who is also that party's attorney of record in court. If a party has an attorney of record, that attorney must approve and sign any papers that are signed by his or her client. Where one or more parties has an attorney of record, Ms. Jansen's office will determine whether one of those attorneys of record will put his or her name on the papers as attorney of record and have them filed. Faith Jansen, as a neutral negotiation facilitator, is not an attorney of record for either party and does not act as a legal representative for either party against the other, either in or out of court.
The number hours it takes to mediate a case depends on the complexity of the legal and financial issues as well as on the communication dynamics of the participants.
Divorce mediation sessions are generally scheduled for two hours in length every one to two weeks, although they may occur more or less frequently. Unless the parties' situation calls for a different order of considering the issues, Faith Jansen will approach them in the following order: (1) Filing a Petition; (2) Short-term, non-binding temporary agreements for occupancy of property, financial arrangements, seeing children, or paying maintenance (support), etc., to make sure that neither party is under undue pressure during the negotiation period; (3) Final property, debt, and retirement asset settlements; (3) Child custody and parenting (visitation) long-term agreements; (4) Child and spousal support long-term agreements; and (5) Review of, and tying together any loose ends of, the comprehensive settlement agreement. While it is not unusual for each of these categories to take a full two hour session or longer, not all cases have all of these issues, and some cases move through them more quickly than others. In addition, Faith Jansen will charge for time spent writing the settlement agreement, which generally takes three to six hours plus additional time for negotiated revisions. If experts are retained to provide appraisals or other services, their fees will be paid by the parties as agreed upon in the mediation.
Mediation of post-divorce issues takes less time since the formal disclosure process is not required and the mediation may be tailored to just address the post-judgment issues in controversy.
Mediation of Guardianship of Children Disputes; Wills, Trusts, and Estates Disputes; and Other Non-Divorce Family Law Disputes
Mediation of guardianship disputes, of disputes involving wills, trusts, and estates, and other types of non-divorce family matters will vary in the length and number of mediation sessions based on the number and complexity of issues. The mediator will help the parties sort through, organize, and prioritize the issues and oversee the exchange of documentation necessary to articulate each party's concerns. Fact gathering may be further facilitated by bringing in outside experts - such as tax experts, appraisers, or other financial experts - to assist in determining which facts may be objectively established and agreed upon by all participants. The mediation will always begin with a joint session attended by all parties and their attorneys. After the initial session, the mediator may, with the consent of the participants, engage in caucusing sessions which means meeting separately with the various parties to the dispute to discuss the strengths and weaknesses of their positions and encourage compromise proposals. Confidentiality ground rules are established before the mediation begins. If a settlement is reached, the mediation will draft a memorandum of understanding or a stipulation for court order. All proposed settlement documents must be approved and signed by the attorneys for the parties as well as the parties themselves.
Parties may schedule a pre-mediation consultation appointment, also called a mediation orientation appointment. This pre-mediation meeting is confidential and its purpose is to enable the parties to assess whether they have rapport with the mediator and to discuss the format that will be used in the mediation. All parties to the dispute should attend the mediation orientation appointment. Alternatively, if the parties to the dispute are represented by attorneys, the attorneys may contact Faith Jansen to arrange for the mediation. To get information on how to set up a pre-mediation consultation with Faith Jansen, click here: Appointments