What is Mediation?

Mediation is a non-judicial method of trying to settle disputes. Although divorces are filed in courts, how you get to the terms of the divorce can be resolved in several different ways. You can duke it out in court, or you can try an alternative dispute resolution technique like mediation.

Mediation Described

There is no actual definition of mediation except to say it is a dispute resolution process. The best way to define mediation is to describe it. Here’s how it works: After the divorce is filed, and the spouses and attorneys are satisfied they they know what the marital estate consists of, they will meet with a mediator. A mediator is usually, but not always, a family law attorney who is neutral in the divorce case.

Mediation Process

At mediation, the mediator sometimes begins by holding a joint meeting with both spouses and their attorneys. The mediator explains what will happen that day and encourages the spouses to come to an agreement. If the spouses do not come to an agreement, then the court will decide the issues. Courts often do not decide divorce issues the way the spouses would like, so it is better to resolve them by mediation if possible.

On other occasions, the spouses, their lawyers and the mediator decide not to hold a joint meeting but to go immediately into caucus. What this means is that each spouse, with his or her attorney, goes to a separate room. The mediator then sits down with one side to go over the case and to try to formulate a proposal. Then, the mediator takes that proposal to the other spouse and his her attorney and goes over it with them. The mediator continues to shuttle back and forth until an agreement is reached or an impasse declared.

Time for Mediation

There is no set time period for mediation, but most family law mediations take a full day. In the most complex and difficult cases, mediation can takes several days. In the early days of family law mediatioin, mediators would push the spouses to stay late to try to reach an agreement. But some spouses who did stay late became tired and made agreements they did not like. Most mediators now use an agreed "hard stop" which is a time set in advance for mediation to end if no agreement has yet been made.

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