Mediation is where the parties to a divorce or parental responsibility (custody) case meet with an independent professional to discuss and attempt to reach an agreement on the issues in the case. Participating in mediation is in good faith and is typically ordered by the court in both initial and post-decree domestic relations cases. Reaching an agreement during mediation is voluntary and cannot be compelled. Mediation occurs before the case is allowed to be presented to the court. Parties can attend either with or without their attorneys being present. If an agreement is reached on some or all of the issues, the mediator prepares a Memorandum of Understanding (MOU) for review and signature by the parties and their attorneys. The signed MOU is filed with the court and, after review and approval, becomes the order of the court resolving the agreed upon issues.
Mediation is a form of Alternative Dispute Resolution (ADR). Other forms of ADR include Arbitration; submission of the dispute to a Decision-Maker (DM); engaging in a combined process of mediation and then arbitration (Med/Arb); or obtaining the guidance and recommendations of a Parenting Coordinator (PC). In custody cases, some courts will direct the parties to participate in an Early Neutral Assessment (ENA), which is also a form of ADR and similar to mediation but much more intense with the focus limited to parenting matters.
In mediation, the parties typically meet initially with the mediator to be informed about the process and then break up into separate rooms for discussion and negotiation. The mediator listens to both sides of the dispute, usually makes suggestions, and will present any proposal made by one party to the other party for consideration. It is an informal process in which only the parties and their attorneys are involved. There are no witnesses and the mediator does not take sides or issue a decision. The process is confidential in nature and is not intended to be adversarial. It is an attempt to reach common ground and mutual agreement with the help of a facilitator rather than litigate the issues. Other ADR processes are more formal and may resemble having a private trial rather than an informal discussion.
Successful mediation and ENA’s result in a MOU (also known as a Memorandum of Agreement). At the conclusion of arbitration, an Arbitrator will make and issue an Award. A Decision-Maker, having the authority of an arbitrator, issues a Decision. A Parenting Coordinator issues a Report with Recommendations that are filed with the court. The court reviews the MOU, the Award, Decision, or Report and Recommendation and enters either an approving or disapproving order.
The court cannot order the appointment of an Arbitrator or a Decision-Maker unless the parties agree in writing to submit their dispute for resolution by that process. The court can order the parties to participate in mediation or an ENA regardless of whether the parties agree to engage in those processes.
The benefit of ADR is lower legal costs and sooner resolution of the dispute. The benefit of having a trial is being able to present witnesses, evidence and having full legal procedures apply in an adversarial proceeding.
Mediators are private professionals, some are licensed attorneys while others unlicensed but trained in the mediation process. Cost varies and is usually split 50/50 between the parties. The court will typically order that the parties either agree upon who is to be the mediator or, absent agreement, engage the Court’s services at the Office of Dispute Resolution (ODR). ODR mediation may be scheduled online.
The information provided above is general in nature, is not intended as legal advice for your particular situation and should not be relied upon without first consulting with legal counsel.