Mediation & Arbitration - Mediation FAQ's
If you believe you and your spouse or ex-spouse can negotiate the issues in your dispute directly with each other, you may save money, and you may develop a more acceptable resolution than if you leave the issues up to the court. Mediation often costs less than litigation because direct contact between the parties, or contact facilitated by a neutral, streamlines the negotiation process. Mediation can also give you more control over how long it will take to resolve your dispute.
How does mediation work?
Parties who mediate meet with a third-party neutral, in this case an attorney experienced in family law. The parties may meet in the same room, or choose to be separated, with the mediator shuttling between them. Generally, the parties may negotiate virtually all the ground rules of the mediation, what issues will be addressed, who will attend, and every other aspect of the mediation. The mediator’s tasks include providing information the parties need to make decisions about their agreement, and helping the parties brainstorm solutions. While the mediator does not represent either party or provide legal advice, the mediator can provide legal information, which may give the parties an idea how their case will be treated in court. The mediator may also act as a counselor to help the parties determine what each of them wants in the agreement. This information often helps parties negotiate their own solutions.
Can I still use an attorney?
Yes. Like most aspects of mediation, you control the process. You have a right to legal counsel in every element of your life, and this is not taken away just because you are mediating. Whether attorneys will actually participate in a specific mediation session is open for agreement by the parties. If one party insists they will attend while the other insists they won’t, mediation may not be possible. But because the mediator cannot give you legal advice, you may want an attorney involved, either as part of the mediation or as a reference outside the mediation. Or you can choose not to use an attorney at all.
Is the outcome binding?
Only if you come to an agreement. While there have been cases that turned on this question, generally, if you enter into a signed agreement, the court will likely enforce it. Of course, you can always ask to have any agreement reviewed by your attorney before you sign it. If you don’t come to an agreement, not only is everything in the mediation discussions not binding, it can’t even be admitted into evidence in court. This rule is to assure the participants they are safe to make suggestions and brainstorm ideas without fearing they will be held to them later, unless they are signed.
How long will mediation take and what will it cost?
Most mediations take much less time than most people think. At The Harris Law firm, the average mediation for a typical divorce takes between two and five hours. This may be done at one time, or it may be divided over several sessions. This does not include any time necessary to prepare the agreement or develop any other paperwork that may be necessary. Such paperwork may require additional time by the mediator. The cost will depend on how long the mediation takes and, if there is paperwork, how complex the case is. Generally the charges for the mediation are for the mediator, which is the cost of a single attorney, and the cost of the paperwork, which may involve both paralegal and mediator time. A major advantage is that this cost is usually divided between the parties, and is less than if each party were to hire his or her own attorney to do the negotiating.
When can mediation occur in the process?
At any time—before any papers are filed, during the paperwork process, or just before a court date. The point is, a settlement negotiated directly between the parties is almost always more acceptable to both parties than an outcome decided by the court, or an outcome negotiated by the parties’ representatives. The best time for mediation is anytime the parties are ready to settle.
Are all mediators attorneys?
No. Many mediators are psychologists or others in the helping professions; however, there is no credentialing or licensing for mediators--literally anyone can advertise themselves as a mediator. It is important, therefore, to choose your mediator carefully.
Why should I hire an attorney mediator?
The advantage of using a legally-trained mediator is the knowledge the mediator provides regarding the law, court procedures, and how judges generally rule on specific issues. This information is usually very helpful in negotiating an agreement that is fair and satisfactory to both parties. Such information can also prevent the parties from making agreements that a judge might not find acceptable. An attorney should also have access to paralegals and other support personnel that can draft pleadings for the parties and provide immediate response to questions.
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