While we are always ready to fight in court for our clients, most cases reach an agreement at mediation. Let us be your guide through the mediation process and help you find an agreement that works for you.
What is Mediation?
Mediation is a formal negotiation process wherein both parties are physically present with their attorneys and a mediator. A mediator is a third party that is completely neutral. The mediator’s only job is to see if an agreement can be reached that resolves the issues in the case. The parties can reach a full agreement, partial agreement or no agreement at all. Everything that happens in mediation is confidential and cannot later be used in court. This intent of this rule is to allow parties to make offers in mediation without the opposing party telling the court about an offer should the case go to a final hearing.
In practice, mediations usually take anywhere from three hours to a full day. Often, the mediator will start with everyone in the same room to layout the case. Once the parties start talking about specifics or making offers of settlement, the parties often move to separate rooms, with the mediator going back and forth between the rooms to discuss settlement proposals. Parties that are particularly close to an agreement can sometimes remain in the same room while working out the details.
How is it Different From Arbitration?
Mediation and arbitration are often confused. While both fall under the category of “alternative dispute resolution”, they are very different. Here are the major difference between the two:
- Used in most family law
- Neutral mediator facilitates settlement discussions, but has no power to order anything
- No formal discovery procedures and no rules regarding evidence (as no evidence is presented)
- Parties discuss settlement
- Parties may or may not leave with a final agreement
- Almost never used in Family Law
- Arbitrator essentially acts as a judge and renders a decision in the case
- Usually involves some discovery procedures and relaxed rules of evidence
- Parties put on their case as if in court
- At conclusion, arbitrator issues a ruling
Private Mediation vs. Court Program Mediation
There are two major types of mediation the parties will experience in the family law context. Both are mandatory depending on the issues in your case. While attendance at the mediation is mandatory, there is no requirement that any agreement be reached. Once you have attended the mediation and been released by the mediator, your obligation is fulfilled, even if you do not reach any agreement.
The parties in financial cases (any family law case that includes a claim for equitable distribution or support) are ordered to attend a private mediation. A private mediation is simply one wherein the parties have to pay for the mediator. These mediations are set with a mediator selected by the parties, occur outside the courthouse, and are usually scheduled for a half or full day depending on the complexity of the case. At a private mediation, the parties are free to negotiate any issues they have between them, including custody. These mediations can occur by agreement before or after any court action is filed, but are usually ordered when a case is filed.
Court mediation is an entirely different program and only involves the issue of custody. All parties in custody cases are ordered to attend court mediation, which is a court-sponsored program wherein the mediation is held at the courthouse and is mediated by one of the staff mediators for the county. These mediations do not include attorneys, are usually limited to three hours and deal only with custody. The court mediation program is very inexpensive compared to a private mediation, but is set for less time, does not involve attorneys and is limited to a single issue (custody). If an agreement is reached in court mediation and the parties are represented by attorneys, the agreement is sent to the attorneys for review before anyone signs the agreement.
How Much Does It Cost?
Court mediation is free. Private mediations have two cost components- the fees your attorney charges you to be there and the fees of the mediator. The mediator is allowed to charge an administrative fee (usually $200) and an hourly rate, which can vary from mediator to mediator. Most mediators charge between $200 and $250 per hour. This fee is usually split between the parties and is due at the end of the mediation, whether an agreement is reached or not. Some mediators accept credit card payments, but many do not, so it is important you determine what kind of payment your mediator accepts prior to the mediation.
Making Mediation Successful
No one can force a settlement at mediation, but there are ways to increase the chances of settlement at mediation:
- Identify the issues early in the case: What are the parties litigating (not just what is in the general pleadings- what does each party really want)?
- Make sure you have your documents in order. Not only should you have all the financial statements, appraisals and other information ready, it should generally be shared with the opposing party in advance so they have time to review it before the mediation (as opposed to reviewing it while the mediator watches for $250 per hour).
- Make sure you have all the financial documents you need from the opposing party. This means utilizing discovery or voluntary document exchange prior to mediation. Take the time to review the financials provided and get any additional information you might need.
- Meet with your attorney before mediation to discuss the financials in the case and any other major issues. While mediation is nothing like a hearing, it is best to prepare for the mediation as if it were a hearing- have all your evidence ready.
- Stay calm. Getting offended by a first offer or getting side tracked by immaterial / emotional issues can slow down mediation or end it before it gets started.
Working with an attorney to prepare your case for mediation is vital to success at mediation. At Vorhis Legal, we have represented clients in hundreds of mediations. In addition, Adam Vorhis is a certified mediator, which allows him to understand both sides of the process. If you would like the assistance of an experienced attorney to help you prepare for mediation, please contact us today.