What is divorce mediation?
Are you wondering what is divorce mediation? When married individuals have a pending divorce, parties will often attempt mediation during their divorce proceedings. The divorce mediation process presents an opportunity for parties in a divorce to use a third party to assist in the negotiation of a settlement agreement.
Settling a case can save a lot of money and time while allowing the participants to be a part of crafting their own agreement. Parties can either mutually agree to mediate their divorce case and agree upon a mediator to use, or the judge can order mediation and appoint a mediator prior to setting the case for trial.
In fact, some judges require parties requesting a special setting for long and contentious divorces to attempt mediation before allowing the case to get a full-day case setting on their trial docket.
Once mediation is either ordered or agreed upon by the parties, the agreed-upon divorce mediator will schedule the mediation according to the parties’ and attorneys’ schedules and set a date. Most mediators charge by the hour and have a minimum amount of hours that must be prepaid.
The divorce mediation cost is usually either split between the parties or ordered to be paid by one party, depending on the circumstances. When it is time for mediation, the Plaintiff and Defendant will go to the mediator’s office at their designated times and meet with their attorneys. The times are often offset so the parties never actually have to see each other that day.
The parties are also placed in separate rooms with their attorneys; both parties and their attorneys do not all sit in the same room at a long conference table like in many movies.
The divorce mediator will speak to the parties separately explain the mediation procedure and answer questions. The mediator will go back and forth between the parties and their attorneys delivering offers and counteroffers.
In divorce mediation, the mediator is usually going to be a practicing attorney who is familiar with family law. The mediator is able to use their own knowledge of the law to help guide the mediation and can help give unbiased third-party opinions to both sides of the case regarding what is likely to happen in the event that the parties fail to make an agreement and proceed to trial.
They can relay information they are told to deliver to the other side and will keep other information private if told not to share.
The Plaintiff will make the first offer, as they are the ones that brought the divorce action. The Plaintiff and his/her attorney will convey their settlement offer to the mediator and the mediator will then take that offer to the defendant and his/her attorney.
The Defendant and his/her attorney will discuss the offer extended by the Plaintiff and either accept the offer or formulate a counteroffer for the mediator to take back to the opposing party.
The negotiations will continue until either an agreement is finalized or the parties reach an impasse and continued negotiations would be unsuccessful.
In the event an agreement is reached, the parties will both sign the agreement, accompanying documents, and child support documents if applicable. The agreement will soon after be filed with the Court and submitted to the judge.
Assuming the agreement is accepted by the judge, then a Judgment of Divorce (JOD) will be issued by the judge and the agreement will be incorporated in the final decree and then the parties will be divorced. Settling a divorce at mediation will often allow a married couple to get divorced more quickly than a contested trial would allow due to judges’ busy trial dockets.
The settlement also has the ability to save the parties money on their legal fees. Continued trial preparation, subpoenas, pretrial hearings, depositions, and hourly retainer agreements can get expensive but sometimes said expenses are unavoidable when parties do not agree.
In the event that an agreement is not reached and mediation is unsuccessful, the parties will be left in the same position they were in prior to mediation and can continue preparing for trial.
Mediation is confidential and settlement negotiations are inadmissible at trial, therefore neither party needs to worry that unsuccessful negotiations and offers extended but not accepted will come back to hurt their case.
Thus further allowing the parties, attorneys, and mediators to speak freely and attempt to find common ground that might allow for settlement and the resolution of a divorce case. Hopefully, this gives you a better idea of what is divorce mediation and the process.
Author: Walter Gewin
Attorney Walter Gewin is a native of Mobile, Alabama. After graduation from law school, Walter clerked for Circuit Court Judge John Lockett before pursuing a career in the private practice of law. Initially, practicing a wide variety of law; Walter’s practice has become more focused on family law, including juvenile, probate, and domestic relations matters. Walter also currently serves as a certified Guardian Ad Litem in Dependency, Delinquency, and Domestic Relations matters.