A: Family Mediation is a confidential and voluntary process where couples who are separating or divorcing are helped by a mediator to develop solutions to their problems by themselves. These problems may include: (i) custody and visitation of the couple's children, (ii) the amount and type of financial support for which each party may be responsible, (iii) the division of property between the parties; and (iv) any other issues that have arisen in the course of the couple working out the ground rules for their new living situation.
A mediator does not decide these issues as a judge or an arbitrator might. The mediator is neutral and does not advocate the position of one spouse or another. Rather, a mediator helps a couple to establish a fair process by which they can discuss these issues rationally and with a minimum of conflict. A mediator may also suggest techniques by which other couples faced with similar issues have resolved their problems and can help the parties work towards a fair compromise.
A mediator is not a marriage counselor and does not try to help the couple get back together. Parties should engage in mediation only after they have determined that their relationship should end.
A: Mediation is not for everyone. It requires the willing participation of both parties on an equal footing. Each party must be committed to working things out fairly for everyone concerned. Each party must be willing to make certain that everyone has equal access to information concerning the family finances and other matters. Each party must be willing to listen to the other - even if they do not agree with what they hear. For this reason situations involving domestic violence, drug or alcohol addiction or the mental incapacity of one party are poor candidates for mediation.
A: As a general matter, lawyers are not present during mediation sessions and do not communicate with the mediator. However, at the end of the mediation, the mediator will prepare a document setting down the agreements that the parties have reached. This document is called a Memorandum of Understanding. In some instances, a mediator may prepare a more formal draft Property Settlement Agreement. The parties then consult with attorneys who review the document prepared by the mediator and advise their respective clients as to their rights regarding the agreement they have reached. These attorneys are called Review Attorneys. In addition, one or both parties may wish to retain their own attorney during the mediation process. This attorney should have a good understanding of and a commitment to the mediation process and should function as a "coach". These attorneys are sometimes referred to as "mediation Counselors". After they have reviewed the document prepared by the mediator and have advised their clients, the attorneys take the necessary actions for the couple to obtain an uncontested divorce from the Court.
A: Because Mediation is tailored to each situation it is difficult to predict with certainty how long the process will take. However, after an initial planning session, the parties usually meet for two-hour sessions every other week. While a mediation can end after two or three sessions, depending on the complexity of the issues presented, the process can require between eight to twelve sessions in some cases, and possibly more than that.
A: Mediators usually charge by the hour at the same rate as attorneys. Payment is usually made at the time of the session and is paid by either one or both of the parties, as they agree. In addition, Mediators may also charge a fee for the preparation of a Memorandum of Understanding or a draft Property Settlement Agreement, either on an hourly basis or a flat rate, depending on the circumstances.
Mediation is often less expensive than attorneys' fees incurred in traditional divorce proceedings. The parties pay one mediator instead of two attorneys and do not have to prepare papers or engage in costly arguments before a court as to discovery and procedural issues. Mediation also is often less expensive then traditional divorce proceedings because the parties are cooperating with one another and not constantly fighting in court.
© The Law Offices of Michael R. Magaril. All rights reserved.