What’s Going to Go On at my Divorce Mediation Session?

by Annette Burns on February 4, 2015

How should clients prepare for a divorce/ family law mediation session?   I have a standard letter I send out to counsel when a mediation is scheduled, but I try to keep it fairly brief, knowing that people don’t want to read a long letter.   It basically sets the hours we will meet on the day of mediation; my hourly rate, and how much needs to be paid in advance of the mediation date; and when I’d like each party’s “separate mediation memorandum” ahead of the mediation date.    I also make it clear that the amount paid to me in advance is not a flat fee; there could be additional fees if we go over the time allotted, and the parties could get a refund if we don’t use all the time.

In my opening letter, I don’t try to go into the process of the mediation itself, knowing that attorneys prepare their clients for mediation in different ways. But a cheat-sheet of some of my mediation processes might be helpful, so I’m offering this blog post in case clients or attorneys want to use it in preparing for a mediation day.   Please note:  Mediators handle different things in different ways, so if your mediation is taking place with someone other than Annette Burns, be sure and ask these specific questions of your mediator.

These are common questions the client wants to know about mediation.

What if the other side doesn’t pay his/ her portion of the fees?     You will be notified if a person hasn’t paid fees by the required date.   The other person can pay the total fees to ensure that the mediation will go forward, or the fees can be paid from a community/ joint account, or the mediation may be cancelled.  To ensure that mediation goes forward next time, you may need to get a court order specifying who pays what, and when.

Will I be reimbursed by the other side for the mediation fees I paid?  Maybe.    Those fees might be discussed as an issue to be resolved at mediation, in the same way we talk about attorneys’ fees possibly being awarded to one side or the other.

Who is coming to mediation?  Can I bring someone as support?  Always check with your attorney before bringing any other person to mediation.   Most mediators are not opposed to an additional, important person being there with you, but only if you ask ahead of time and notify the other party who you want to bring.  Your attorney may want to bring your business evaluator, CPA or financial advisor to provide information during the meeting, and that’s almost always okay.  If you want to bring a new significant other, or a parent, that should always be discussed with your attorney and the mediator ahead of time, as the mediator may not want an outsider there.   More than one mediation session has been cancelled because someone showed up with an additional person who was not vetted with the mediator and the other side first.

Will I be sitting in the same room as the other party?   At my office, probably not.  My procedures generally have the parties in separate conference rooms, with their counsel, for the entire day, to afford you the maximum privacy and security and to reduce your stress as much as possible.

Will we be in the same room at all?   It’s certainly possible that a joint session will best serve specific issues, like talking about the specifics of a holiday parenting time schedule.   You and the other parent may want to talk about specific times or exchange days, and the attorneys and mediator will not know the specifics of your family as well as you do.   You will be asked if you’re comfortable with a joint session before it happens. If you know you don’t want a joint session at all, then make sure you’ve given your attorney specifics about what you want, in writing, ahead of time, so those specifics can be shared with the other side.

Where will we be sitting?  Is there internet and a phone?  Do we get breaks?   You and your attorney will have a private conference room with a conference table, telephone, and internet.  You can bring a computer or iPad.  You should bring snacks you like, and you will be given a chance to leave for lunch (or order in).   It’s also good to have a sweater or coat, as the conference rooms are sometimes very cold. There will be plenty of coffee and cold drinks provided, and a break anytime you need one.

Will we sign final documents at mediation?  Usually, no.    If your case is so far along that final documents should be signed on the day of mediation (such as when there’s a trial date in just a few days), then the proposed final documents MUST be exchanged with the other side at least several days before the mediation.  Don’t show up with a proposed Parenting Plan or 30 page Property Settlement Agreement and expect the other side to read and agree to your provisions at the mediation.  If they haven’t see the proposed documents ahead of time, it’s not going to happen.

If we don’t sign final documents that day, then what happens if we reach agreements?  The mediator will prepare a written Memorandum of Agreement (MOA).  It will have the highlights of your agreements listed, and you’ll sign that MOA indicating that you’ll be bound to those provisions. There will be a statement and discussion about “Rule 69“, which is a Rule of family law procedure that permits the parties to reach BINDING agreements.   The goal of most mediations is to reach binding agreements on most or all issues, and ensure that neither party tries to back out of the agreement later.    If you aren’t sure about agreeing to something, then you can always say that at a mediation session, but don’t SIGN anything unless you intend to be bound by that agreement.

The MOA will then be used by your attorneys to prepare the final documents for the judge to sign. Those final documents usually include a Decree of Dissolution of Marriage, a Property Settlement Agreement, and a Parenting Plan if you have children.   The final documents contain more detail about your agreements, and have boilerplate provisions that could be necessary to enforce or define your settlement later.

Will I be under a lot of pressure to agree to things?   The goal of mediation is to reach agreements, and agreements are voluntary.  The mediator has no authority to force you to accept or sign anything.   The mediator may make suggestions about what you should do, or whether something is a good deal, or as good as you might get in court, but those are only suggestions.    If your mediation session is taking place very shortly before your trial date, you will feel more pressured than usual, but that’s because you will shortly be going to trial.    You have a chance in the mediation session to “set your own fate” by reaching agreements instead of having a judge rule, but it’s always still your choice whether or not to agree.

The next post will cover some things that attorneys can do before the mediation date to improve the chances of settlement.

 

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