Q. What exactly is mediation?
A. Mediation is a confidential process in which parties in dispute meet with a specially-trained, neutral and impartial third party (the mediator) who assists them in working towards a solution that will be acceptable to all parties. All issues in dispute (child support, visitation, custody, property division, etc.) will be discussed.
Q: Do I have to go to mediation?
A: Probably. Most family law courts require mediation prior to any contested hearing. Even if the court does not require it, either side can ask the court to compel mediation and chances are the court will grant this request. Mediation is usually a good idea, as it allows you to be much more creative in solving disputes than a judge is likely to be.
Q: Is the mediator like a judge?
A: No. The mediator will try to lead you to an agreement, but if you and the other party cannot agree, the mediator cannot make a decision for you.
Q: If the other person says something in mediation, can I use it against him in Court? Can I get the mediator to testify for me? Can the mediator tell the judge that the other person didn’t negotiate fairly?
A: No. Mediation is like Las Vegas–what happens there, stays there. The mediator will file a report with the court saying that we attended mediation and either did or did not settle. The mediator cannot testify in court, even if you try to subpoena him or her. Nothing that is said in mediation is admissible in court. The only exception to this is credible allegations of child abuse–like your attorney, the mediator is required to report these.
Q: Can the mediator force me to accept an agreement that I don’t like?
A: No. The mediator is there to help the parties figure out a solution that everyone is satisfied with. The mediator cannot coerce a settlement.
Q: Does mediation always work? Is it guaranteed to keep me out of court?
A: Unfortunately, no. How well mediation works depends on how committed the parties are to finding a solution. Sometimes mediation fails completely. Sometimes some issues are resolved and others are not. Each mediation is unique. However, approximately 80% of family law cases settle at mediation.
Q: If I agree to something in mediation, can I change my mind later? What if the other party won’t follow through on the agreement?
A: At the end of the mediation, the mediator will put the agreement in writing which all parties will sign. The agreement is then “etched in stone.” That means that neither party can change his mind later, and each party is entitled to a judgment (court order) based on the mediated settlement agreement.
Q: Do I have to have a lawyer with me at mediation?
A: If you are represented by an attorney, your attorney will attend mediation with you. Although many family law mediators are licensed attorneys, the mediator cannot give either party legal advice. If an amicus attorney has been appointed in your case, he or she will also need to attend mediation.
Q: How much does mediation cost?
A: It varies with different mediators. An average cost is $400 per party for a half-day mediation. You will know prior to mediation how much the fees are. Most mediators require payment at the beginning of mediation, and most do not accept credit cards or personal checks. The mediator fees are in addition to your regular attorney fees.
Q: Who picks the mediator?
A: Generally the attorneys involved will get together and mutually decide on a mediator they know, have worked with in the past, and have confidence in. If they cannot agree, the judge may appoint a mediator.