What is Mediation and How Does It Work?

Some people are often surprised that despite the fact that someone has filed a petition for dissolution in court and are in full-blown litigation, they are still required to participate in mediation in an effort to come to an agreement. It seems almost counterintuitive to require mediation when the parties are likely in court because there was no agreement.

 

However the litigious you and your spouse are, the courts are less likely to entertain the minutia of your life, and the large caseload judges have on a daily basis force them to send out cases to mediation as much as possible. Most courts in the domestic relations division require all parties with children to attend mediation on all of the issues regarding parenting time and the allocation of major decision-making on behalf of the minor child(ren). The rationale is that the parents are in a better position to come to an agreement as to a visitation schedule and other issues relating to their children than a judge does not know them or their children personally and can make life-altering decisions after a 5-15 minute court-date. If the parties do not come to an agreement in mediation, then the judge will have to make a decision for them.

 

Given the large success parties have in mediation regarding parenting issues, courts have been referring cases out for private mediation on the financial issues as well. Financial issues are more difficult to mediate since everyone has a different opinion on what they are entitled to receive as support or maintenance should they let a judge decide for them. In the long run, however, even if they settle for less/more than they would’ve obtained after a trial, the parties often spend less on attorneys fees and come out more amicably than a 3-5 day fully litigated trial.

 

If you and your spouse are already divorced and entered into a joint decision-making agreement with your ex-spouse, there may be a clause in that agreement requiring you and your ex-spouse to attend mediation before you go to court to litigate any issues in the case. This provision again keeps parents out of court if a mediator is able to assist the parties in reaching an amicable resolution.

 

Talk to your attorney if you are required to attend mediation or if mediation is appropriate in your case. In the end, if there is no agreement, a judge will hear evidence in your case and decide either way.

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