What Is Mediation in Family Law?
Mediation is a process where both parties — typically individuals in the process of a divorce, though not always — meet with a trained mediator to work out the details concerning their lives post-divorce.
Issues concerning finances, custody of any minor children, and other considerations are typically discussed under the mediator's guidance. Mediation is meant to be a non-adversarial process where both parties can have an open, constructive dialogue about the best way to move forward with their lives after they are divorced.
How Does Divorce Mediation Work?
In most cases, divorce mediation involves a pre-mediation screening to determine whether mediation is even workable. If one party or the other is opposed to mediation, or the relationship is particularly adversarial or abusive, mediation may not be a suitable process.
After mediation is agreed to, a trained mediator (typically a social worker, lawyer, judge, or other professionals) invites both parties to a room to discuss the details of their divorce. Even if a lawyer or a judge, the mediator does not offer legal advice but acts as an impartial and patient guide to the conversation. Each person should have their own lawyer to prevent any conflicts of interest.
In many cases, a mediator will work with both sides to prepare a written agreement (or memorandum of understanding, which signifies the shared intentions of those seeking the divorce. This agreement can be reviewed by each party's legal counsel, and may eventually form the basis for a settlement agreement.
What Happens at Child Custody Mediation?
Child custody mediation sessions can be either court-ordered or sought privately and consensually. In California, for example, a state-issued fact sheet (FL-314-INFO) clarifies that the goal of child custody mediation is to develop a workable parenting plan. If the parties can't reach a plan via mediation, a judge will have to decide.
Child custody mediation involves sitting down with a mediator to discuss issues surrounding custody — both legal and physical — as well as any timetable concerns that either parent might have.
Divorce Mediation vs. Litigation
The primary difference between going through divorce mediation and the typical divorce via litigation is that the two parties actually sit down to discuss the matter in person (or via online connection).
A more traditional divorce litigated by each party's respective lawyer means that the bulk of the negotiations occur between the lawyers' offices, with little to no contact or conversation between the two parties concerning the divorce.
How Is Mediation Different from Settlement?
Mediation is a form of alternative dispute resolution (ADR) where the parties work collaboratively to work out a solution or solutions that are satisfactory to them both.
On the other hand, a settlement meeting or settlement conference may look like a mediation session, or it may resemble something more similar to a typical negotiation between attorneys representing each client. However, a court-ordered settlement conference will be presided over by a legal authority (typically an attorney acting as a judge pro tempore), as in New York.
Collaborative Divorce vs. Mediation
Collaborative divorce differs from mediation in that it, by definition, involves lawyers negotiating on behalf of each party to a divorce. In this way, it resembles typical divorce proceedings. But it also falls in line with the spirit behind mediation as it demands a cooperative approach to finding a solution that suits everyone involved.
Couples typically seek a collaborative divorce to reduce the cost of the divorce (cutting down on lawyers' fees) and keep any non-romantic relationship the two parties may have intact or for the benefit of any children. In a collaborative divorce, negotiations are made in good faith, without strong-arm tactics that may be more common to a traditional divorce conducted through attorneys.