Mediation Frequently Asked Questions (FAQ)

What is Mediation?

Mediation is a process in which parties to a conflict voluntarily participate in a joint effort to reach a settlement. A neutral third party, the mediator, facilitates the communication between the parties, addresses the barriers to resolution and helps fashion a settlement to which all the parties can agree.

Why is mediation typically more effective?

• You get a chance to fully discuss an issue before you agree on it
• You can try out agreements before the judge makes the divorce final
• You learn to communicate better which makes new and old issues less likely to turn into arguments, or worse still, days in court
• You can take time in between each appointment to think about whether or not a proposed solution makes sense
• if you need to change a solution before finalizing your divorce in court you can do it quickly and easily

Why is mediation more cost-effective?

Mediation is cost-effective because it's faster and more direct. Most people come to mediation willing to work on the issues and to learn how to communicate better. That willingness translates into a less expensive divorce because resolving a case is almost always cheaper than taking it to trial. Rather than speaking through lawyers, you speak with each other (with the mediator's help, of course) about your goals and issues. Even if lawyers are involved with your mediation, they aren't spending hours in court waiting for the judge to be free to hear your trial or billing for endless back-and-forth phone calls about the smallest details of your case. When you're using your lawyer, they're actually working on your case and helping to settle. Consequently, their fees are typically much lower than in a case which is brought to court to litigate.

How does mediation differ from arbitration?

In mediation the parties have more control of their future. Mediators are process experts, not decision-makers. A mediator will help parties to reach agreement, but cannot impose or dictate a settlement.

Is there a role for my attorney?

Your attorney can play an important role by advising you, clarifying legal issues, and helping to draw up agreements. At DivorceWise Mediation Services, we are accustomed to working closely with parties and their attorneys to further the shared goal of resolution.

Do you receive a percentage of the settlement?

No. Mediators work on an hourly fee basis. This fee can be paid by one or both parties, in any sharing arrangement they agree upon. In some cases a fixed fee rate can be agreed upon instead.

If we reach a settlement, is it legally binding?

Yes, either the mediation will close with a signed agreement, or the attorneys for the parties will commit to ending the lawsuit with a formal settlement and release agreement.

How is mediation different from collaborative law?

Mediation is both complementary to and different from collaborative law. In collaborative law, attorneys for opposing parties agree to cooperate to find an agreeable settlement. This is accomplished by bringing both parties and their counsel together in joint meetings, which allows a greater likelihood of compromise than in adversarial litigation. Even in collaborative law, however, each attorney has a legally mandated responsibility to make it their first priority to protect their own client's interests.

Mediation, on the other hand, is a process that creates a neutral space for the exploration and resolution of issues to all parties' satisfaction. Because mediators are not representing either party, they are free to have private meetings with each side when it is helpful, and to engage in subtle diplomacy if that will further the progress of the negotiations. Mediators have a range of options not available to the lawyer with a client.

What if we can't reach agreement?

You are free to return to litigation if you choose to do so. The mediation process you have gone through remains confidential, and your mediator cannot be called to testify in court, if you choose to litigate after mediation.

Divorce Mediation