Frequently Asked Questions
How is mediation different from litigation?
Mediation is a process that encourages a supportive and constructive environment that promotes communication and problem solving. In most cases, all people involved attend mediation at the same time and meet in the same room with the mediator. The mediator works to guide participants to their own unique settlement. Mediation is private and confidential. Conversely, litigation is an adversarial system open to the public. Each person generally hires their own attorney who advocates for them and the people might not communicate directly with each other, but through their attorneys. In litigation, a judge ends up deciding the outcome of the case.
How do I get started?
We offer divorcing couples a free, no obligation, consultation with the mediator. At the consultation, the mediator will get a sense of your case and answer your questions about divorce and the mediation process. The consultation is also an opportunity for couples to get a sense of the role of the mediator as a neutral party and what the mediation sessions will be like. If mediation seems right to both of you, the next sessions will be scheduled.
Do I need to hire an attorney?
It is not necessary for couples who utilize mediation to hire an attorney. The choice of whether or not to retain representation is completely up to each participant. It certainly may be advantageous for a party to have access to legal representation during the mediation process to answer questions and provide legal advice. The mediator does not provide legal advice during the course of mediation. Many couples try mediation first and decide later if they want representation. An attorney can be hired at anytime before, during, or after mediation.
How much does mediation cost?
The average cost for a mediated divorce is around $3,000, depending on the complexity of the situation. Mediation fees are generally shared by the parties, so that would be $1,500.00 each. To contrast this with the litigation process, most attorneys will require $5,000 simply for a retainer. When one party retains an attorney in the litigation process, the other typically will retain another attorney, incurring another set of attorney’s fees. The success rate with mediation is very high and this insures a very cost-effective resolution in most cases (normally about one-fifth of the cost of a litigated divorce).
Once you have finished mediation, you will need legal documents drafted for the court, signed by each of you and filed with the court. For parties who are unrepresented, drafting can be done by a neutral drafting attorney or by a neutral scrivener. This will add some additional cost to finalize the divorce. We will discuss what options are available and may be best for your situation.
Who will succeed in mediation?
Almost all couples have the potential to be successful at achieving a mediated divorce settlement. If both parties are honest, open and fair and committed to the process, both parties will achieve an advantageous result. We guide the participants using a a productive and fair process of resolution of their conflicts using a client-centered framework, which concentrates on assisting all people involved in achieving the best possible outcome through a cooperative approach.
How can it work if my spouse is so much more powerful?
There are power imbalances in all couples depending on the issue before them. It is the mediator’s job to identify those power imbalances and work to make sure both parties are empowered during the mediation process.
Will mediation work if there is domestic abuse?
Mediation can work in those cases as long as protective measures are put in place. In these situations, we believe divorce mediation is more appropriate than lawyer-negotiated divorce or litigation. Conflict is significantly decreased in mediated divorces, when compared to litigated or lawyer-negotiated divorce.
How do I find out if mediation is right for me?
We offer a free, no obligation, one-hour consultation. At the consultation, the mediator will get a sense of your case and answer your questions about divorce and the mediation process. If mediation makes sense to to both of you, we will schedule the next sessions.
How long will mediation take?
We will likely schedule each mediation session for two hours and it usually takes three to five sessions. The number of sessions depends largely on the complexity of your case and the level of conflict involved. Participants are encouraged to be cooperative, organized, and well prepared with their documentation in order to require fewer sessions. Once mediation is completed, it can take several weeks for your divorce to be finalized with the Court.
How does the mediation process work?
At the initial session(s) we will be gathering information and documentation regarding your marital assets and debts, living expenses after divorce, etc. We will then begin discussions towards resolution of property division, custody, child support, spousal support, and more. The mediator will guide the discussions, listen to your ideas about settlement and offer creative options when needed.
How do you divide property?
As a general rule, the law says that your property division should be “equitable.” “Equitable” doesn’t necessarily mean “equal” and is determined by the facts and circumstances of each individual case. The mediator will help guide your discussions to reach an equitable division of property based upon the facts and circumstances of your unique situation.
How is spousal maintenance/alimony determined?
Alimony (also known as spousal maintenance and spousal support) is discretionary. This means that you can make your own decisions regarding spousal maintenance in mediation, as long as your reasons are logical and fair and can be explained in your divorce documents.
How is child support determined?
In most cases, the state child support guidelines dictate the amount of child support. However, with the increase in shared custody arrangements and customized parenting plans, some parents choose to deviate from the child support guidelines. In order to do this, the parties need to provide a detailed explanation of the purpose for deviating. In mediation, you can be creative, discussing all options and deciding what will work best for you and your children.
What is the best custody arrangement that reduces conflict in the future?
The answer is a custody arrangement that both parties create together. Even though you are ending the marriage relationship, you are not ending the parenting relationship. You will need to work together and communicate as parents well in to the future, and it is important that you have a custody plan that works for you and the children.
Is mediation confidential?
Yes. At your first working session, the mediator and both parties will sign an Agreement to Mediate. This in combination with other rules, make the mediation confidential, which means that all mediation discussions, communications and notes cannot be used as evidence at a trail. In addition, it prevents the mediator from being called as a witness in a trial.
Is a mediated settlement binding between the parties?
Yes. After both of you resolve all of your issues in mediation, the mediator will write up your agreements in a mediated settlement memorandum. The mediated settlement memorandum then goes to an attorney to draft the legal documents necessary to file for divorce with the courts. If either or both of you have an attorney at the beginning of mediation, then it’s common for one of your attorneys to draft the legal documents. These are then reviewed by the other’s attorney and approved. If neither of you has an attorney when you begin mediation, and choose not to have attorney representation, you can use an independent attorney – one who technically represents neither of you – but drafts all of the paperwork for the court. Either way, if there are any major changes needed or red flags pointed out by an attorney, you would return to mediation to renegotiate that issue.
If I leave everything up to the Judge, will the Judge’s decision be fair?
Fairness is a subjective concept. What one party may think is fair, the other may think is very unfair. One of the major unknowns a party can eliminate in a divorce proceeding with mediation is the unknown decision of the Judge. No one can tell you with certainty what the Judge’s decision will be on all of the issues. Generally, the parties feel like they have either won or lost on any given issue. On the other hand, we believe that both people can be more satisfied in mediation by making their own decisions rather than letting a stranger make decisions about your life and your children for you. In addition, people are more likely to honor, respect and carry out the decisions made together in mediation, than decisions forced upon them by the Court.