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Mediation | Alternatives for Settling a Divorce or Custody Case Outside of Court - Part 4

divorce mediation Feb 20, 2019

This is video 4 in my series on how to resolve your divorce or child custody case outside of court.  In the first 3 videos we have covered the simple strategies of writing letters back and forth, we’ve covered informal settlement conferences and also collaborative divorce. In this video I’m going to talk to you about mediation which is another type of alternative dispute resolution.

Mediation is a process whereby the parties meet and if they have attorneys the attorneys are often present.  There's a key player that is involved that differentiates mediation from just having an informal settlement conference. In divorce meditation there's a neutral person who is trained in mediation and that person works with the parties to try to help them resolve their differences.

In most of the mediations that I participate in the mediators do the mediations in a caucus format.   So what that means is that each party has a room to him or herself.  If the attorney is with him or her then the attorney and the party sit in a room and the other party sits in another room.   The mediator shuffles back and forth between rooms trying to broker agreements or areas of compromise between the parties.

I've had a lot of great success with mediation and I've actually been a mediator in many cases. I think what's helpful about mediation is that you have somebody who is usually experienced in family law.   Often they are a retired judge.  The mediators can talk to you about your positions and whether those positions are reasonable.  They can help you in reality checking, meaning if you're not really being realistic about what your expectations are they can help you roll it back a little bit.  They can help you know what to expect in the court room and help you arrive at decisions on your own terms versus having a judge make those decisions for you.  If there's one tip that I have for somebody who's considering doing mediation I would say that it's really important for you to have all of your pretrial discovery done prior to going into mediation.

What that means is you should have disclosed everything to the other party that they need to make informed decisions about resolving the case.   You need to feel comfortable that the other party has given you all the information that you need to make informed decisions about the case.  If you have not exchanged this information,  then you're not making decisions knowingly and if you're not making them knowingly you're not making them voluntarily.  If you're making decisions based on incomplete information you may sign the final paperwork and then six months from now find out that the house was worth $500,000 instead of $300,000 and you got shorted $100,000 from your share of the equity,  that could be really upsetting.  

Another tip that I have is if possible you should provide your mediator with a summary of your positions on each of these disputed issues.   That way going into the mediation you can’t waste a lot of time filling in the mediator about what you want and why.   If you have it all down in writing,  the mediator can take a look at it know your positions and you guys can dive right in and start negotiating.