Mediation is an alternative dispute resolution process in which a trained neutral third party, the mediator, assists parties in reaching agreements about issues in their case. A mediator’s role is to facilitate communication between the parties, identify issues, and explore various settlement options. The ultimate goal of mediation is for resolution of disputes and for the parties to reach a settlement agreement.
Mediation can be very successful in resolving disputes. The role of the mediator is to help the parties reach an agreement. The mediator’s role is not to represent or protect either party’s interests. By comparison, an individual attorney’s role is to represent and protect the client’s individual and stated interests. When and how to involve an attorney in mediation depends upon the unique circumstances of each client’s set of facts.
Mediation of family law issues can occur at any time the parties desire it. Some parties choose to participate in mediation voluntarily because parties want control over the ultimate outcome. This can be with or without attorneys present at the mediation. Sometimes, it makes sense for a party to work with an attorney outside of the mediation sessions and attend the actual sessions without attorneys. Other times, it makes sense for an attorney to attend the mediation sessions. Ultimately, these decisions are best made in consultation with an attorney knowledgeable about your individual facts and circumstances.
Conversely, mediation can occur because the parties are in litigation and the court has ordered the parties to try and resolve their disputes in mediation. Attorneys are generally required to participate in mediation sessions that are ordered by the court because suit has been filed.
In voluntary mediation, if an agreement has been reached, some mediators will prepare a settlement agreement or term sheet for the parties to sign and memorialize their agreement. Other mediators will provide the parties with a list of mediated terms but leave it to one of the parties to hire a lawyer to draft the agreement. Generally, if an agreement has not been reduced to a writing, and signed by the parties, there is not an enforceable agreement.
However, in court-ordered mediation, an agreement may reached and be stated in the courtroom to the judge (and where everything is recorded), written by the mediator, or recorded in some other fashion, in the presence of the mediator, parties, and attorneys.
If you are considering mediation as an option to resolve your family issues, an attorney can be helpful to you in the process by:
- Assessing the appropriateness of mediation
- Helping you find a mediator suited to the circumstances
- Working with you to develop a mediation plan based on your unique situation, including:
- When and how to involve the attorney in mediation
- A mediation strategy designed to meet your goals
- What to expect in mediation and how to make the sessions as productive and efficient as possible
- How to protect your interests if attorneys are not present at the sessions
- Reviewing mediator drafted agreements or drafting agreements based on mediated terms.
If you have questions about the mediation process, please call me at (240)617-0405.