Most people think of divorce mediation as something you try before you go to court. However, mediation can occur at any time in a case. Sometimes, the parties are more willing to mediate after they have been fighting over their divorce for a while than they were when the action was first filed. Couples should consider this option because there are many benefits to using mediation during divorce litigation to help resolve or limit the issues that need to be tried in court.
What is Mediation?
Mediation is a voluntary process where the parties work with a neutral third-party mediator to negotiate a settlement. The mediator doesn’t decide the issues or force a resolution. He or she facilitates discussion to help the parties find creative solutions that meet their needs. The parties can resolve all or some of their conflicts and stop the process at any time.
Courts strongly encourage spouses to mediate disputes to avoid litigation.
Why Should You Try Mediation Before You Go to Trial?
Unfortunately, divorce cases can take a long time and it may be a year or longer before you get to trial. During the intervening period, you will be gathering information from each other and trying to resolve any disputes over money and children. Often, this is a contentious period where both sides are emotional and focused on “winning.” However, as the case progresses, it isn’t unusual for the parties to want to get to the end of the case and become more open to settlement. Mediation can aid in this process.
Among the benefits of mediation are that it allows both parties to air grievances but keeps them focused on finding common ground and engaging in constructive problem-solving. Parties who mediate are often more satisfied with the process and their settlement than those who litigate. Generally, it is also a faster and less expensive option than going to trial. This is important because spouses who have been litigating for a year or more may have already paid significant fees and a trial will be costly. Even if mediation only settles some of the open issues, it can save time and money.
How Does Divorce Mediation Work During Litigation?
There are two options for divorce mediation:
- Court-referred mediation. The parties ask the court to refer them for mediation. Typically, the first session with a mediator is at no cost. Thereafter, there is an hourly fee paid to the mediator.
- Private mediation. It is best to go to a firm that employs retired matrimonial law judges to mediate disputes. In this way, the couple gets someone experienced in divorce law and who understands how judges look at a case. This perspective can help the parties understand that the judge will not view their arguments in the same way that they do.
In both cases, the court may postpone court proceedings while the mediation is pending.
Often times, the parties’ attorneys may not participate directly in the mediation sessions. However, they are available to provide legal advice, assist in evaluating offers made by the other side and recommend solutions.
If you are considering divorce, you should consult an attorney who will strongly advocate for your interests and help you weigh the costs and benefits of mediation or settlement vs litigation. Contact us to discuss how we can assist you in achieving a positive outcome in your case.