Art of the Deal- Your Divorce Mediation Questions Answered

Is mediation right for my divorce?

When I practiced family law in Atlanta, Georgia, parties were required in mediate issues before a judge would hear them. That is not the case here in Western Pennsylvania other than for custody issues in Allegheny County, which are handled without the lawyers present. That said, parties can always agree to mediate their cases. Because of my background with practicing in Georgia, I have attended more than 100 mediations with clients. Here in Western Pennsylvania, parties more frequently mediate without the attorneys present. I personally prefer to attend mediations with my clients to make sure their rights are being protected but understand that some parties prefer to mediate without attorneys present.

For most of my clients, the mediation they attend for their divorce is the only mediation they will attend during their lifetime. Understandably, clients have many questions about the process and what to expect. Here are some of the most common questions I receive:

  • What is the format of mediation?

Generally, at mediation, both parties and the mediator initially meet together around a conference table. At that time, the mediator reviews the rules of mediation with everyone. Then each side, usually through the attorneys, inform the mediator of the issues to be resolved in the case and a general overview of the facts and arguments. This is the first time the mediator will hear anything about the case. The parties then “caucus”, which means that each party sits in a separate room, accompanied by their respective attorneys. The mediator acts as a “ping pong ball” moving back and forth between rooms until a settlement is reached. The initial meeting with each aide can be lengthy but subsequent meetings usually become shorter as the issues narrow and less background information is needed. If the parties agree to a settlement, the terms are reduced to writing and signed by the parties.

  • What if we don’t settle the case—will the judge find out what I was willing to offer?

No, the mediation process is completely confidential and settlement negotiations are inadmissible in court. Neither party may call the mediator to testify in their case. Each party may also give background facts or strategy information to the mediator and, if they so specify, the mediator cannot repeat these facts or information to the other side. Offers of settlement, however, can be revealed to the court in the context of attorney fees after the substantive portion of the case is resolved to show that a party drummed up the fees by being unreasonable.

  • I do not want to see my spouse at mediation—can we avoid the initial meeting?

Most mediators will agree to meet with only the attorneys for the initial meeting if either party is apprehensive about a joint meeting. If the attorneys are not present, then it will be up to the individual mediator.

  • How can I best make sure my case settles at mediation?

Often, cases do not settle at mediation because one or both of the parties are not ready. Wait to mediate until you both have all of the information about the assets, liabilities and income to make an informed decision.  Otherwise, you may have to stop the mediation and reconvene, which may make you lose momentum toward settlement. You also need to know your legal rights and obligations.  The mediator cannot give you legal advice.  Finally, make sure both parties are emotionally ready to settle the case and let go of the marriage. I have seen parties offer way too much to get a case settled because they were ready to move on and their spouse was not. The cases would end up not settling because the other party was not emotionally ready. In the meantime, the party that was ready to settle just upped the ante in all future negotiations. Timing is everything.

  • Can my case settle if it doesn’t settle at mediation?

Yes. Many cases that do not settle at mediation eventually settle either at a subsequent mediation or by the exchange of written settlement offers between the attorneys.

With all mediations, proper preparation and strategy are the keys to success.  I can help.  Here’s how to get started.

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