What is mediation?
Mediation is a technique of settling conflicts between parties outside of court. Mediation can be used in all civil cases, including but limited to: divorce, family law, real estate disputes, contract disputes, suits for damages, etc.
You and the other party are mostly in control of the mediation, not the attorneys or the mediator. A mediator is a neutral third person who serves as a channel for the parties’ views. The mediator may or may not be a lawyer. However, in any event, they are not permitted to provide legal advice to either party. The mediator is neither an arbitrator or a judge, and everything spoken during the mediation will remain confidential. If your case includes domestic violence, the mediator has received specialized training in this area. The mediator may not be subpoenaed as a witness, and nothing spoken during the mediation may be used in court as evidence. If the mediation ends early or does not result in an agreement, you have the right to go to trial and resolve the dispute in front of a judge.
When is it appropriate to use mediation?
Parties should almost always try to settle a legal issue via mediation or arbitration before proceeding to court. Attending court may be nerve-wracking since you never know what will happen. ADR, which encompasses mediation and arbitration, is gaining popularity as a means of resolving conflicts. Frequently, the court will also order the parties to a lawsuit to attend mediation before the case can continue to a trial, with the hopes that the case will settle.
While the cost of a mediator is similar to that of an attorney, the mediation procedure is much faster than traditional legal proceedings. A dispute resolved by a lawyer, or a court may take months or even years, while mediation often takes only a few hours. Reduced time spent on hourly fees and expenses equates to decreased costs.
Mediation is completely confidential, in contrast to court proceedings, which are open to the public. Only the disputants and the mediator or mediators are aware of what occurred. Because of the significance of confidentiality in mediation, a mediator cannot be forced to testify in court about the substance or progress of mediation. Many mediators immediately delete the notes they took during the mediation. Child abuse and actual or threatened criminal actions are the only exceptions to this stringent rule of confidentiality.
Generally the parties to a mediation will show more respect to the agreement than they would to an court order made without their agreement. Compliance with the mediated agreement is often high, as the parties work together to achieve an amicable resolution. Even more than that, the parties save money since they do not need to hire an attorney to enforce the agreement. On the other hand, the mediated agreement is enforceable in a court of law. If either party does not comply with a court order that approves a mediated agreement, they can be found in contempt of court.
Participants in mediation are usually willing to cooperate to find a solution. The willingness to mediate indicates that the parties are ready to “modify” their positions. Consequently, the parties are more receptive to understanding the other’s perspective and resolving the disagreement’s underlying problems. This also often results in the preservation of the parties’ connection prior to the disagreement.
Mediators have been educated to deal with circumstances with high levels of stress. The mediator, as an impartial facilitator, helps the parties throughout the process. The mediator assists the parties in thinking “beyond the box” in potential conflict resolutions, thus expanding their options.
What is a typical mediation session like?
Mediation sessions can vary in structure greatly depending on the court’s rules, the mediator’s preference, and the kind of case. Using a divorce case involving minor children as an example, below is a common mediation meeting format divided into three sessions.
Introductory Remarks (First Session)
There will be an opportunity for questions and responses after the explanation of mediation. A mediation agreement, which describes the rules of the mediation, will have to be been signed by the parties and attorneys. The basic mediation standards are discussed. Any agreements reached so far (if any) may be discussed at the beginning of the mediation so that they are not rehashed during the mediation. The agenda for the following session is set, and the mediation will begin.
Parenting Plan and Child Support (Second Session)
The session will begin with each spouse’s proposed Parenting Plan and desired visitation schedule. If both partners are prepared, one session should be sufficient to cover a Parenting Plan. Typical Parenting Plans are divided into the following sections:
- Major Decision Making for the Children: religious instruction / upbringing, elective (non-emergency) medical treatment, extra-circular activities, and education (where the children go to school, and what do they study)
- Weekly, Summer and Holiday visitation with the parents. Although not common, the mediator may want to speak with them and provide them with an opportunity to participate in the proceedings. This is usually only done with older children
- Special Circumstances, such as: International Travel, Pass Ports, introducing the children to the parent’s new love interests
- Child Support: This is an important issue that may require its own session. But the goal is to reach an agreement regarding the amount (if any) that will be paid for child support, and put it into an agreement referred to as a Child Support Addendum.
Financial Dispute Resolution (Third Session)
Usually, financial issues in a divorce can be resolved with the guidance of an experienced attorney and your own understanding of your finances and your spouse’s finances. However, if the financial settlement is complicated and unclear, you can contact a registered divorce financial analyst. A financial analysts will offer you accurate asset allocation and budgetary forecasts recommendations. When there are disputes or impasses over assets, the mediator may be able to help. Couples may have the greatest difficulty dividing personal belongings with strong emotional attachments. Depending on the nature of the problems and the complexity of the assets, several sessions may be required. Couples with modest assets are more likely to reach an agreement quickly (in one session). If one of the spouses wants alimony or spousal support, this may require its own session. However, alimony and the division of assets and debts usually best settled together as the parties’ overall financial resources is a major factor in alimony.
Obtaining assistance with mediation.
If you have any questions about mediation, real estate, business, divorce, family law and/or civil disputes call us at 770-609-1247 to discuss your questions with an experienced Georgia attorney. Contact >