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Mediation is a voluntary process in which parties who are involved in a dispute work with an impartial party, the mediator(s), to discuss their issues and find solutions to settle their conflict. Unlike litigation, where a busy overworked judge hurriedly decides issues for parties within the strict confines of the law, mediation empowers participants to resolve matters within a legal context, but with the flexibility of practical solutions, and the goal of win-win agreements.
2What issues can be settled?
Mediation is a time-efficient and cost-effective way to resolve all of the issues that arise during the divorce process as well as those that continue to confront families even years after their divorce is final. In Family Law, typical issues are child custody and visitation, child and spousal support and the characterization and division of property. Lifestyle, move-away and the concerns of new step-families are also areas which require resolution, often after a divorce has already occurred. Mediation also can be very effective for creating positive pre-nuptial agreements and resolving disputes among siblings and heirs.
3Does mediation work for everyone?
For settlement to work, parties simply have to be willing to engage in the process of discussing and negotiating their issues. Simply put, they must be willing to talk (if not to each other), at least with the mediator. In that process, they are exposed to ways of learning how to communicate more effectively. Mediation will work as long as the parties are willing to communicate, be honest and not be abusive or attacking. That doesn't mean that people cannot express their feelings, but a degree of respect must accompany that expression.
4Will I need an attorney?
Rather than having lawyers speak for them, parties are encouraged to speak directly with each other (with a trained mediator's help) about their concerns and goals. Although parties are welcome to have their lawyer present during mediation sessions, a lawyer's presence is not necessary. Mediation facilitated by a knowledgeable and experienced family law attorney results in agreements that have a basis in legal principals, but are flexible enough to be tailored to individual needs. Once a tentative agreement is reached, the parties are encouraged to have it reviewed by an attorney or personal adviser if they wish.
5How long does the process take?
The amount of time necessary to reach an agreement depends on two main factors. The first factor is the number and complexity of legal issues. Obviously a childless couple with little property will have a lot less to resolve and take less time than parents who are in conflict over custody, or have complex financial issues to work out. Nevertheless, whether the case is simple or complex, mediation will still be much faster than going to court. Most experts estimate that it takes about one-third of the time to mediate a case as it does to litigate it.
The second factor is the parties’ willingness to engage in the settlement process in an open, flexible and compromising manner. Although the mediator will help things move forward as much as possible, ultimately the parties are the ones who determine the length of time spent in the process. With that said, our experience is that the typical mediation takes two to four meetings, with each meeting lasting about three hours.
6How does the process work?
There are many styles of mediation and several different approaches to the process. At Settlement Works, our method is designed to maximize communication and understanding between the parties, both of the issues confronting them as well as the legal concepts that affect those issues. We believe it is our proper role to educate the parties as to the basic law relating to property rights (such as community property and separate property), child and spousal support, custody (legal and physical) and visitation or time sharing. Our experience is that if you have an understanding of the law and what a court might do, you are in a much better position to make an informed and empowered decision about any specific issue. We also believe it is helpful to for you to get our opinion as to the strengths and weaknesses of your case, so you can arrive at a compromise that reflects a reasonable result within the framework of the facts and law of your specific situation.
We usually commence our mediation with all parties together in the same space, either with or without attorneys. We meet in the very comfy living room of the Concordance. We will briefly discuss and sign an agreement, that relates to the confidentiality of the mediation process. The general rule is that "what is said in mediation, stays in mediation." This is designed to permit a free exchange of ideas, positions and settlement proposals, without having to worry that they could be used against you in court or some other context. Nothing said in the mediation process is admissible in court, and with few exceptions, the mediator cannot be called to testify about what was said in any meeting or doing the mediation process.
Sometimes it is appropriate for us to break into separate groups. This allows for private discussions or strategy sessions to make or consider a proposal on one or more issues. These meetings are private and confidential. The mediator will only disclose what has been agreed on in the private session ("caucus"). On the Concordance, in addition to the main salon, there are several spaces available to meet (top deck, front deck, dock, kitchen/galley. Music piped through the boat provides for privacy of conversations. It is not unusual for these separate discussions to be the basis for serious negotiations and ultimate resolutions.
Sometimes, especially in divorce, the emotions of one or both of the parties is too high to meet together, at least at first. Although no one is ever allowed to be abusive or disrespectful during the mediation, it is still understandable that meeting together can be difficult, especially in the beginning. The separate spaces of the yacht makes those separate meetings comfortable and possible.
After discussions and negotiations have taken place and an agreement has been reached, the mediator will prepare an agreement. Sometimes it's a simple one page "deal memo" on one or two issues, other times it's a complete 20 page stipulated judgment.
7Is mediation binding?
The goal of mediation is to reach agreement on disputed issues through discussion, negotiation and compromise. Once an agreement has been reached, the mediator can prepare a formal document to be signed by the parties and submitted to the Court to be signed by a Judge. That document will be a legally enforceable Judgment. Experience has shown that people are more likely to abide by agreements that they have had a role in creating, as compared with litigated orders made by a Judge.
8Will I have to go to Court?
One of the advantages of using mediation to go through the divorce process is that NEITHER PARTY HAS TO GO TO COURT! All of the paperwork will be processed by our office, thereby saving you the time, trouble and aggravation of having to appear in court.
9How much does it cost?
The short answer is, a lot less than litigating in court, usually about one-third as much. For more cost information and a few examples, please visit our cost page.
10What is the Beyond Mediation program?
The greatest benefit of mediation is the opportunity for finding fair, practical and workable choices for everyone involved—most particularly, the children. Often, the need for resolution of emotional conflicts may be of equal or greater importance than settling the legal issues. For this reason, it is often through a holistic approach towards resolution that post-divorce families are finally able to achieve a healthy, amicable state of being. An important benefit of this approach is that people tend to comply with mediated agreements much better than they do orders arrived at through litigation. At Settlement Works, we offer the option of our Transformational Divorce program, an opportunity for couples to complete and heal the emotional wounds of their divorce, improve their communication skills, and create a forward looking relationship, especially as effective, cooperative co-parents.