During the mediation process itself, the parties will not need an attorney, but they are free to consult with an attorney either before or during the process if they feel that they want legal advice. The Mediator will not be acting as a lawyer for either party and cannot provide legal advice. Also, the parties may agree to bring attorneys to the Mediation sessions, but that would increase the cost of your Mediation. At the end of the Mediation, it is recommended that the parties review the agreement with their own counsel before they sign the agreement.
All parties who are necessary for the decision making process must be present. In addition, as long as all parties and the Mediator agree, an individual may bring someone to the mediation for purposes of support or advocacy.
Every mediation is different, but on average a divorce mediation will take two to three sessions of two hours each if you have minor children and one to two sessions of two hours each if you do not have minor children. However, the mediation can take longer if you have more complex issues or if the parties are in dispute over a significant amount of issues.
No. Mediation is a voluntary process, and both parties must agree to mediate.
1. Mediation not only saves on the financial and emotional cost of litigation and on the increasing length of time it takes to complete a litigation, but it is particularly well suited in conflicts in which the parties will have an ongoing relationship, such as parents raising a child together, neighbor disputes or employment disputes.
2. Mediation can save money, time and effort and eliminates the uncertainty of results.
3. Mediation provides an opportunity for everyone to meet one another, share thoughts and understand one another's position.
4. Mediation allows the parties to vent in a safe and constructive manner for reaching resolution.
Since one of most important concepts of mediation is the idea of the mediator's neutrality, it is not recommended that the Mediator speak at length with a party individually, and in fact, all emails and correspondence typically include both parties. However, on occasion the Mediator may suggest a caucus, where he or she speaks with one party and then the other. This could be helpful if there is significant hostility between the parties on a particular issue.
The cost of mediation is in line with the amount of time it takes to complete the mediation since you will be billed on an hourly basis. In general, the time spent in the mediation itself will be between $1,500 and $3,000, and then there are additional fees for drafting documents such as the Separation Agreement and divorce papers. Of course, it can cost more or less depending upon the complexity of the issues and the extent of the dispute. However, a mediated divorce is in general less costly than a litigated divorce or an attorney negotiated divorce.
2. Unbiased outlook.
3. Good listener.
5. Experience as a mediator.
6. Experience in the subject matter.
Not at all. To the contrary, the parties determine the order that issues are discussed, the amount of time spent and the terms of any agreement that is reached.
All parties in conflict have different points of view, and it is not expected that you are in total agreement when you first come to mediate. The only thing you need to agree upon initially is the process of mediation itself.
Clare offers divorcing couples both the benefit of her twenty-five years of experience in family law and her sensitivity to the emotional upheaval being faced by divorcing couples. She values the couple's right to determine the outcome of their divorce and sees her role as helping them communicate more effectively so they can reach a mutual agreement.
1. The mediator decides the settlement reached by the parties. To the contrary, any agreements that are reached are made by the parties.
2. The parties are too far apart to mediate. All parties in conflict have different points of view, but common interests can be found.
3. Mediation can only be done after a lawsuit is filed. Mediation can be done at any point but generally serves to avoid litigation so it is most commonly begun before other types of conflict resolution are used.
Most Separation Agreements, especially those that were mediated agreements, provide that before anyone goes to Court to try to change the terms of the Separation Agreement that they attend at least one session of mediation. If you previsouly mediated your agreement, you could meet with that mediator, if you both agree. However, you can choose any mediator you like. Of course, if you didn’t mediate your original agreement, you and the other party just need to agree upon a mediator.
Absolutely. Whether or not you initially mediated your matter, you can alway mediate any future issues which may arise, even if your Separation Agreement does not have a mediation clause.
Basically, anything that the two of you agree that you want to mediate. It can include a dispute on a question for joint custody, a dispute over selling your former home, a relocation issue or that the access agreement with your children isn’t working for you or the children. All of these matters can be mediated. Generally, though, if you have an issue with non-payment of support, maintenance or any other monetary obligation, mediation may not be your best option.
If you are changing substantive terms of your agreement, you should incorporate those terms into an Amendment to your Separation Agreement, and if you are divorced, that Amendment should be incorporated into an Amended Judgment of Divorce.
The mediator will screen for the capacity to mediate to insure that the party understands the nature of the mediation process, assess options and make and keep an agreement. However, capacity is not an "all or nothing" phenomenon, and capacity can fluctuate over time. The mediator will strive to enhance a party’s capacity so that the mediation can involve the elder person even if she is not always completely lucid. For example, it is likely that a person has periods in the day when she is more clear, and the mediation would be scheduled during such periods.
In consideration of the health issues of the elder party, the mediation can occur in the home or at a nursing home facility. The paramount issue is that the elder party is comfortable and at ease.
In any case where there is concern that an elder person is the victim of abuse, the appropriate authority should be contacted to insure the safety and well being of the elder person. Once that is done, however, a mediation may occur provided that the agency permits it and that appropriate measures are taken to insure the safety of all participants.
It is imperative that all parties who are important to the process are present, so these mediations tend to be multi party. In addition, parties may have a support person there if they wish. For example, an elder person may want his social worker or trusted friend to help him speak on his behalf.
Most people turn to mediation because they do not want to have to retain lawyers, and so it seems contrary to the process to retain an attorney. However, mediation and having your own attorney are not mutually exclusive principles. Your own attorney can give you the kind of legal advice that a Mediator is not permitted to give you. During the mediation, you might find it frustrating when you ask your Mediator questions that fall into the category of legal advice, and your Mediator tells you she can’t answer. Your attorney, on the other hand, is the proper person to answer all of your questions and advise you based upon his or her interpretation of the law.
Usually, mediators have lists of attorneys that they distribute to their clients, and they tell their clients that the attorneys are "mediation friendly". This means that they are likely mediators or collaborative attorneys themselves and so they respect the process of Mediation. It does not mean that they will rubber stamp your Agreement. A review attorney will let you know what your rights are, possible pitfalls in the agreement, and of course, propose some different language. A review attorney should not try to make you change your mind about terms as long as you are fully informed as to your rights and the ramifications of your action.
Not much, and they are used interchangeably. You can meet with your attorney for a consultation before, during or after the Mediation. Or you can wait until you have a Separation Agreement and have that reviewed by the attorney who will then consult with you about the Agreement.
Most attorneys bill by the hour. You can expect that it will be at least three hours for the attorney to review the Agreement and meet with you.