Divorce Mediation – What is it, and How Does it Work? January 25, 2017
Mediation is defined as the attempt to settle a legal dispute through a third party mediator who works to help the parties find a mutually acceptable resolution. The mediation process is non-binding. That means the case will only be settled if both parties agree. Mediation does not always result in a settlement, however, it works the vast majority of the time. Statistics show that 95 percent of family law cases that go to mediation, settle.
Most mediations take a full day to complete. You and your attorney will be in a conference room together, your spouse and his/her attorney will be in a separate conference room. It is unlikely that you will even see your spouse. The mediator will work in each conference room to discuss settlement options, risks, and costs.
The Mediator’s Role
The mediator’s role is not to make a decision or impose an outcome, but to work with the parties to reach an agreement. The mediator does not have to be a lawyer. But it would be unwise to go to mediation with a mediator who lacks experience in the areas of divorce and family law. It is crucial to choose a mediator who is familiar with the law and the courts.
There are two levels of confidentiality in mediation. The first level involves the process as a whole. It’s like the Las Vegas commercials – “What happens in Vegas, stays in Vegas.” What happens in mediation, stays in mediation. That means, if you don’t settle, the judge doesn’t get to hear about what happened in mediation. The judge doesn’t get to hear if one party was unreasonable. The judge doesn’t get to know what offers were made or what facts were discussed. This is important because the parties are not limited in court by offers made in mediation. That means you can make an extremely generous offer in mediation, but ask for much more in a trial.
The second level of confidentiality is within the mediation process, itself. In theory, anything that a party tells the mediator is confidential and cannot be revealed to the other party. That means that the mediator cannot reveal information to your spouse without your permission. That is the theory. In the real world, it works much differently. The vast majority of family law mediators want a free flow of information. They want to be able to use any information you give them to leverage a settlement. Most mediators will ask you to agree that they can use whatever information you provide unless you specifically state that you do not want the other party to know it.
Mediated Settlement Agreement
The goal of mediation is to reach a settlement agreement that will be written into a Mediated Settlement Agreement or MSA. The MSA is a contract between you and your spouse that sets out the terms of your agreement. While the MSA is a contract, it is actually much more powerful than a typical contract. Some cynics suggest that contracts are made to be broken. This is not true with an MSA. Once the MSA is signed by the parties and their attorneys, it cannot be revoked and the Judge has no power to change it. Even if the judge does not like or agree with the terms, the judge is required to sign a Final Decree of Divorce containing only the agreements in the MSA.
Why Some Cases Don’t Settle
When cases don’t settle in mediation, it’s usually because emotion is getting in the way of reason. There is nothing more personal than a divorce. The spouses have failed to make the marriage work. There is always finger pointing and placing blame. This results in heightened emotions which always get in the way of rational thought.
In divorce and mediation, “fair” is a four-letter f-word. There is never a “fair” outcome. You have no choice but to divide your assets and to divide time with your kids. What was once 100 percent yours is now being divided. There is no fairytale ending.
A good settlement means both parties are equally unhappy. Your mindset in a divorce should not be “what would make me happy”. Rather, your mindset should be “what can I live with”. Too often, parties in a divorce case have a winner’s mentality. They want to win. And they spend too much time worrying about how the other spouse feels about a settlement. Again, the mindset needs to be “what can I live with”.
Hope and Optimism
There is a reason for hope and optimism. When you settle in mediation, you are choosing the outcome. You have a known result. You eliminate the risk of the unknown. You eliminate stress. You limit the financial cost. And most importantly, you put an end to the conflict.
If you would like to know more about mediation. Call to set up a consultation. You will meet with Brian K. Tackett who is board certified in family law and has an advanced certification in family law mediation. He will discuss how the process works and why it works so well.
Call (940) 387-3518 or contact us here.
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