Mediation is a common method used to resolve issues in a legal case without going to trial. Parties can agree to participate in mediation, but the court can order mediation as well. Court-ordered mediation typically occurs once it is established that the parties cannot come to an agreement in informal negotiations. Court-ordered mediation aids in establishing a resolution to a case in a timely fashion. Court-ordered mediation generally happens after a period of more informal negotiations between the parties directly has failed. The court will usually set a date for mediation at the status conference. Mediation can occur with simply the spouses going to an unbiased court endorsed mediator, or it can include the spouses with their attorneys. Mediation can be facilitative or evaluative in nature, or any combination of the two.
The purpose of facilitative mediation is to encourage communication between the parties. This may seem very similar to couples therapy, because issues between the parties tend to 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 that deal with child support and property division, it is mostly used to iron out child custody concerns.
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. The open conversation between the spouses is more effective than just going down a checklist, which has a high probability of resulting in disagreements that would have otherwise not been an issue. The role of the mediator in a facilitative mediation is not to take a side, it is to allow the spouses to work on their problems and try to 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 breaking down barriers to communication, which is generally done through venting frustrations. The goal is not to help the couple see eye-to-eye on the marriage, but instead to be able to have level-headed discussions about their roles as parents moving forward, or about the financial issues that will face both ahead. Facilitative mediation, however, is more often used to address child custody issues. However, it can be used to address issues related to property division and child support as well.
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 in an effort 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, as this is not the role nor with the job description of a mediator in a facilitative mediation. Even when a point of contention is found, the mediator will continue to take a very passive approach, trying to let the parties work out a solution they can each live with.
An evaluative mediation resembles a court-like environment. The mediator will take on a role much like the 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 while the mediator rotates between the two. This is different from a facilitative mediation, because the spouses will not directly address each other. The mediation often considers property division and support obligations, so this style of mediation is helpful in keeping emotions under control by not discussing it face-to-face.
Typically, each party will be asked about their wishes and why they think they are equitable. The mediator will alternate between spouses explaining the wishes of both and providing opinions about the points of contentions. 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 come to some sort of agreement on the issues when possible.
Additionally, this type of mediation is generally conducted in “caucuses,” as opposed to joint meetings, meaning each spouse will be in a separate room while the mediator alternates between the two. This helps to keep emotions minimalized, as the parties won’t be pleading his or her case directly to one another. Because of the nature of evaluative mediation, it is often most useful for property division and support obligations.
The goal is to get the parties to an agreement, however mediation does not always result in that desired goal. Sometimes the spouses just cannot agree. If the spouses are able to come to 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 but at the same time remain open-minded. The mediator will attempt to get each side’s point across, which can often result in a successful mediation.
Mediation is a method of working out differences and attempting to see 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 go into mediation with an open mind while also possessing a firm idea of what they want. The mediator will help to keep dialogue going and to 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. As from there, agreement on unresolved issues is all the more possible.
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. In cases where this is doubtful or not present, mediation may be skipped or altered to accommodate the spouses.