HOW DOES MEDIATION WORK IN A DIVORCE CASE?
Mediation
Mediation is a standard method for resolving issues in a legal case without going to trial. Parties can agree to participate in mediation, but the court can also order it. Court-ordered mediation typically occurs once it is established that the parties cannot reach an agreement through informal negotiations. Court-ordered mediation helps resolve a case in a timely fashion. Court-ordered mediation generally occurs after a period of informal negotiations between the parties has failed. The court will usually set a mediation date at the status conference. Mediation can happen simply by the spouses meeting with an unbiased court-appointed mediator, or it can involve the spouses with their attorneys. Mediation can be facilitative, evaluative, or a combination of the two.
Facilitative Mediation
The purpose of facilitative mediation is to encourage communication between the parties and their divorce lawyers. This may seem very similar to couples therapy because issues between the parties often arise. However, the goal is progress toward the ability to have composed discussions about their future roles as parents or future financial concerns. Although facilitative mediation can address concerns about child support and property division, it is primarily used to resolve child custody issues.
In a facilitative mediation, the mediator will allow the spouses to control the conservations with minimal direction in order to nail down what are the key points of disagreement and agreement. An open conversation between spouses is more effective than simply going through a checklist, which is likely to lead to disagreements that would not have occurred otherwise. The role of the mediator in a facilitative mediation is not to take sides; it is to facilitate the spouses' work on their problems and help them reach a solution themselves.
At first glance, facilitative mediation may seem like couples counseling. This is because the first goal in this type of mediation is to break down communication barriers, which is generally achieved through venting frustrations. The goal is not to help the couple see eye-to-eye on the marriage, but to enable level-headed discussions about their roles as parents moving forward or about the financial issues they will face together. Facilitative mediation, however, is more often used to address child custody issues. However, it can also be used to address problems related to property division and child support.
When attending facilitative mediation, spouses can expect to have face-to-face conversations with the other spouse. The mediator will generally take a passive approach, allowing the couple to discuss issues with minimal guidance. This is done to uncover points of contention and agreement. Simply put, the mediator attempts to let the couple lead the way. As such, neither party should expect much support or assistance from the mediator in arguing a point with the other party, as this is neither the role nor part of the mediator's job description in a facilitative mediation. Even when a point of contention arises, the mediator will continue to take a very passive approach, aiming to let the parties work out a solution they can each live with.
Evaluative Mediation
An evaluative mediation resembles a court-like environment. The mediator will take on a role much like that of a judge in a courtroom. The mediator will likely give opinions about each party’s position. The mediator is required to be familiar with family law and the likelihood of the judge’s ruling, so he or she can give accurate opinions about the strengths and shortcomings of each party’s position. Most mediators are former judges, attorneys, or trained specialists. In an evaluative mediation, both spouses will be in separate rooms, with the mediator rotating between them. This is different from a facilitative mediation, because the spouses will not directly address each other. The mediation often addresses property division and support obligations, so this style of mediation helps keep emotions under control by not discussing them face-to-face.
Typically, each party will be asked about their wishes and why they think they are equitable. The mediator will alternate between the spouses, explaining the wishes of both and offering opinions on the points of contention. The objective is to allow the parties to get a glimpse of how the issues will play out at trial, while providing the opportunity to reach some agreement on the problems when possible.
Additionally, this type of mediation is generally conducted in “caucuses,” rather than joint meetings, meaning each spouse is in a separate room while the mediator alternates between them. This helps keep emotions in check, as the parties won’t be pleading their case directly to one another. Because of the nature of evaluative mediation, it is often most useful for property division and support obligations.
Outcomes
The goal is to reach an agreement; however, mediation does not consistently achieve that goal. Sometimes the spouses cannot agree. If the spouses reach an agreement on any issue, the mediator will prepare a memorandum of understanding. Once the parties sign the document, the agreements are formalized. It is helpful for each party to attend the mediation with an idea of what satisfies their needs, while remaining open-minded. The mediator will aim to convey each side’s point, which can often lead to a successful mediation.
Mediation is a method of resolving differences and of seeking to understand the other spouse’s point of view on key issues. Mediation will not always produce binding results. The goal of mediation is to facilitate negotiations; however, this is not always possible, as noted. Nevertheless, parties should enter mediation with an open mind while also having a clear idea of what they want. The mediator will help to keep the dialogue going and attempt to get each spouse to at least understand what the other wants and why he or she thinks that is fair, if nothing else. Getting to this point alone can often result in the mediation being deemed a success in at least some capacity. From there, agreement on unresolved issues is all the more possible.
Non-Mediation Divorces
Even though the court can order mediation, not all couples will be required to attend mediation. If domestic violence is present in the case or is deemed likely to occur, mediation may not be a safe option. The court will also look at situations where there is mental illness or one spouse has unequal bargaining power and decide whether mediation is the right choice. In these cases, mediation may be skipped or adjusted to the spouses’ needs. The court will have to consider the factors of each couple to determine if mediation can serve its ultimate goal. When this is doubtful or absent, mediation may be skipped or modified to accommodate the spouses.