Mediation

Mediation is required whenever there are conflicts concerning visitation or custody. A Mediator is trained to facilitate communication between parties in conflict. Family Mediators are specifically trained to work with people in high conflict situations such as divorce and heavily laden emotional areas like custody and visitation. A mediator can help you communicate with your spouse as to what your concerns are and why you do not agree with your spouse's custody and visitation requests. Everything said in mediation is confidential. The mediator does not share any details with the Court as to the specific issues discussed or things said in mediation.

First and foremost, it is imperative that you feel comfortable sitting in the same room with your spouse and a mediator to discuss the outstanding issues. If you are either physically or verbally intimidated by your spouse, then other arrangements will need to be made. We can use what is called "shuttle mediation" where you and your spouse sit in separate rooms and the mediator goes back and forth between the rooms. If at any time during the mediation, you become uncomfortable, and feel you are being bullied either by the mediator, your spouse or both, then you are free to terminate the mediation and contact me. I will then take it up with the mediator.

Mediation can be a valuable tool in arriving at a consensus on several points, if not the entire array of issues that are pending between you and your spouse. For one thing, it is considerably less expensive than engaging two attorneys to discuss and negotiate a settlement. Also, any time you can reach a compromise you feel that you can live with, you are better off doing that, than placing the issue before a Judge. The Judges after a hearing or even a Pre-Trial Conference, do not have enough information to understand the dynamics of your family, the needs of your children, and the interaction between children and parents. They will end up making a decision based on very limited evidence and information they are able to get during a hearing. As such, their solutions are usually inadequate. People are usually happier when they can agree on something with the other side, even if they are not 100% thrilled with it.

Often times, as mediation is required before we get to hearing on even temporary custody and visitation issues, it is too soon in the process to constructively negotiate in mediation. You should keep in mind that if your initial mediation was unsuccessful with regard to all of the outstanding points, that it may become easier to mediate as the process wears on. People rarely out right win or lose in divorce court. The Judges tend to resolve custody and visitation issues in such a way that both sides are both equally unhappy. In light of the fact that there is never a clear "Court winner", it really makes sense on focus on mediation and give it your best effort. Even if it is unsuccessful initially, we can always initiate it again when we are further along in the process.

Your focus in mediation always wants to be on what is best for your children. There is no point in dwelling on grievances with your spouse. That is just not the forum, unless the grievance directly impacts on the spouse's ability to care for the children while in his or her custody. It always helps the mediator understand that you are thinking of your children when you preface statements with "I think our child....".

A mediator expects full participation for at least three sessions, with a minimum of one hour per session. It is unlikely the mediator will file a report that mediation has been unsuccessful in less than three sessions. You are obligated to make a good faith effort to engage in the mediation process and compromise where appropriate. That does not mean that you have to agree to things that you are not comfortable with.

Mediation is a confidential process. The mediator will not give the Court any details whatsoever as to what was said in the mediation process. The standard report that the mediator files at the termination of mediation states that you have either reached an accord on all outstanding issues, you have reached an accord on some outstanding issues, but some issues remain, or that no issues have been resolved in mediation. A copy of the form is enclosed. As you can see from the form, no details are added and there is no room for narrative on the report.

You have a right to have your attorney present during the mediation process. I do not usually get involved in the mediation process, but if you feel that your spouse is able to intimidate you and you are afraid that you will agree to something you will regret later, then I certainly can attend with you and your spouse. Your spouse also has a right to have their attorney present during mediation.

The mediator is a mandated reporter, which means that if any information comes out in mediation that leads a mediator to believe that your child or children are either abused or neglected, they are obligated to report it to the Department of Children and Family Services. That would entail an investigation by a social worker and a conclusion either "unfounded" or with additional court action in juvenile court.

If you are able to reach an accord on some points or all points, then the mediator will write up a summary of such. That is not the final legal agreement that will be entered as a Court Order. The attorneys prepare the final paperwork for entry with the Court. The mediator just lets us know what matters have been approved. You should always qualify your agreement on anything in mediation with having it reviewed by your attorney and meeting your attorney's approval.

The Rules state that the Mediator determines when an impasse has been reached. However, if both you and your spouse agree that any further attempts at mediation would be futile, then as a practical matter, the mediator is likely to file the report stating that you have not reached an accord. Neither spouse, unilaterally can determine that mediation should be over. And, even if you both agree that it should end and that you are not going to get anywhere in mediation, the mediator does not have to accept that. However, I have rarely seen mediators take a mediation beyond three sessions if the parties are making no headway whatsoever in reaching an agreement.

I hope this helps explain the mediation process. I have seen situations where I was sure mediation was a waste of time, and the parties ended up reaching an agreement. Therefore, I recommend engaging in the process with an open mind and an optimistic attitude. Compromise is key to the mediation process.

If you have any questions, please do not hesitate to call.