A mediator is a neutral, impartial third-party facilitator that cannot order either party to do anything. The mediator assists the parties in identifying the issue(s) that need to be addressed and guides the parties through the web of issues that need to be resolved. The mediator also helps the parties with communication by reducing the obstacles, exploring settlement alternatives with the parties and brainstorming. Through extensive training and experience, the mediator can suggest creative solutions to problems that the parties may have considered “unsolvable”. The mediator cannot impose a decision or a settlement in the case and cannot give legal advice. The mediator helps the parties negotiate, but the participants need to agree as to the final resolution.
Mediation can take place at any time. It can be scheduled before a divorce or paternity case is filed or anytime during the pendency of the case. For most individuals, the earlier in the process the mediation takes place, the more advantageous. Two big benefits to mediation are that it is less costly than litigation and that mediation is a less stressful means to resolve the issues. As such, the earlier the parties end their divorce/paternity case, the less stress they will endure in the process and the less money they will need to spend. Also, the longer the litigation process goes on, the more antagonistic and aggressive the parties will get – and having additional anger and frustration can be an obstruction to future settlement. Alternatively, however, sometimes the participants need to conduct discovery and obtain experts prior to knowing how they want to settle the case. If so, they will need to wait until their research is complete before they can proceed to mediation for mediation to be effective. There is not one solution that would be applicable to all cases. Like mediation, each family is unique and the time to go to mediation is also a decision for the parties to make based on the specific issues and circumstances in the case.
The mediator cannot provide any legal advice to either of the parties. As such, some parties elect to retain an attorney with whom to consult before, during, or in between mediation sessions. Some retain an attorney after the Marital Settlement Agreement, Paternity Agreement and/or Parenting Plan is fully drafted solely to review and advise the individual regarding the legal implications of the documents they intend to sign. Some people do not retain an attorney at any stage of the process. The mediator can draft all of the Agreements that reflect what the parties have agreed to in the mediation sessions if they choose not to retain attorneys. Again, this is a personal decision for each individual to make based on their specific comfort level with the opposing party and the issues involved.
“Yes” simply because prior to going to trial, the Court will require the parties to attend a mediation session and attempt to resolve their issues in the mediation setting before going to Court. However, the answer is also “No” because, in order for mediation to be successful, it is only for those individuals who want to settle their case. Some people aren’t prepared to settle for a variety of reasons. Sometimes they don’t want to get divorced. Sometimes they are so angry that they want to get their day in court or tell the judge that their spouse is a really bad person. Some people are so angry and resentful, that meditation is impossible. Additionally, mediation is not appropriate if one spouse has reason to believe that the other spouse is hiding assets. Accordingly, if there is a likelihood of fraud or a lack of trust that the spouse is not truthful in disclosing the marital assets then mediation cannot be successful. The requirement for a successful mediation is that both parties want to resolve their issues in a non-adversarial and amicable way and with full and candid disclosure of each person’s financial situation.