Maybe the more important question to ask is, Why not? Some people are resistant to the idea of mediation simply because they think they are going to be asked to give up everything in order to reach a settlement. Others are reluctant because they do not understand the process or how it works. The vast majority of cases will settle at mediation so that should be encouraging to you. In this blog, I hope to give you some insight as to how mediation works, and steps you can take to make it successful.
First, the parties must choose a mediator. Sounds simple, right? Not always. Usually the mediator is chosen by the attorneys by their agreement and who they have had good success with. Obviously you want a mediator who has a knowledge of family law and some knowledge of the judges in your county where your case is to be decided. It goes without saying that a mediator must be a neutral party, and cannot have any predisposition for either the mother or father in the case.
Second, a date has to be chosen to allow for all of the parties, including the attorney's to be present. A mediator cannot give you legal advice, so it is always wise to have your attorney present to advise you as to the legal aspect of any agreement you may reach. Do not sign any kind of agreement at mediation without having a fully understanding of what you are agreeing to. Once the agreement is signed by all of the parties, it can be somewhat difficult to get out of it later.
Third, prepare for your mediation session in advance. I think it is a good idea to write down all of the things that you would want, if things were ideal and your former spouse or partner were going to give in to all of them. Keep in mind that you most likely will not walk out of mediation getting everything you want! If you have children, always keep their interests in mind and what would be best for them. When it comes to children, it is not about you and what you want, but what is in their best interest and keeping their world as stable as possible. You might star or asterisk items on your list in advance that you are willing to compromise on and areas that maybe you are not. Remember, everything is usually subject to negotiation or at least being mentioned at mediation, so try and be as open minded as you can. Be sure and have a discussion with your attorney to let them know what you are wanting and what your goals are for the mediation session.
Fourth, show up for your mediation session on time and ready to work hard to get your case settled! Mediation is not all about who gives in the most, its about working together to craft a solution that both parties may live with and best serves their individual needs and most importantly, the needs of the children.
Fifth, listen to the offers made by the other side that the mediator will tell you about. Resist the urge to immediately turn down any offer made. Carefully think through it, ask your attorney for their opinion, and if you need to counter, then express the reasons why the offer made is not acceptable, or communicate what parts you agree to and what you don't agree to, and why. It makes it more difficult for the mediator to help you if you don't communicate to them why an offer is not acceptable. By expressing your reasons why, the mediator may be able to assist your opposing party in crafting offers that would be agreeable.
Sixth, once you have reached an agreement, get it in writing while you are there. That way questions don't come up later of what was or what was not agreed to. Mediation does not always settle every issue on the first meeting, and if there are issues remaining separate those out and get in writing the specific things that were agreed to, so you don't have to revisit them later.
Last, don't forget to pay the mediator!