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First of all, it is important to remember that mediation can be a lengthy process. Although your attorney will prepare a pre-mediation statement for the mediator to provide some background information, both sides will need to speak with the mediator (sometimes at length) in order to make and respond to offers. As a general rule it takes several exchanges of settlement offers before it is even apparent whether or not the case is likely to settle at mediation.
Usually in family law cases the parties will be located in separate rooms with their individual attorneys for much, if not all, of the mediation. The mediator will go back and forth, taking and delivering settlement offers and information between rooms.
It is important that there has been sufficient exchange of information so that the parties are in a position to negotiate a settlement. When set too early (at a time when the parties don’t have sufficient knowledge of the debts and assets, for instance) mediation may fail for that reason alone.
Mediation is an informal process. At any point if you wish to speak with your lawyer privately you can request that the mediator leave the room. There is however a significant amount of “down time,” when the mediator is in the other room, for you to discuss confidential subjects, strategy, etc.
Anything that is said in mediation is considered confidential unless or until it results in a written settlement. In other words, both parties can feel free to make offers and think creatively in an attempt to resolve all issues. If those offers are not accepted, you are not stuck with your offer and can request more, or less, than the proposal if case ends up in court. Also, statements made to the mediator which you or your attorney request he or she keep confidential will not be divulged to the other side.
The goal of mediation is to come to a negotiated agreement. That agreement will then be reduced in writing immediately, if possible, and all parties will sign off on the agreement. If all issues are resolved, then the case is completed and any trial dates scheduled will be vacated. If you are not able to settle all issues, it is sometimes possible to settle some issues and reduce the cost and length of trial.
It takes compromise on both sides to settle a case in mediation. The other side is not likely to offer what is your very best outcome if you were to try the case. Likewise, you are not likely to agree to a proposal that is the other parties’ best day in court.
The value of mediation, however, is that you can decide what issues you will compromise on and to what extent. It is possible in mediation for both parties to get a substantial amount of what they want, if they are willing to negotiate on other issues. I recommend that you spend some time considering which issues are most important to you, and which issues you would be willing to compromise on, before walking into mediation. It is also important to have considered what a first offer might be.
Mediators vary in their position regarding the option of having 3rd parties present during mediation. If you would like to have a friend, family member or 3rd party present, you should discuss this with your attorney ahead of time. That 3rd party, if present, should be someone whose advice you trust, but someone who will not insist on overriding your position on any issues. In the event it is not possible, or appropriate, to have a 3rd party actually present at mediation, you can always take a break during the process to make a phone call if you wish. If your case is particularly complex, it can be helpful to have your accountant, a child’s counselor, or other professional available by telephone during the mediation.
Mediation is a valuable settlement tool. So valuable, in fact, that many courts require parties to mediate before they can have their final hearing. This is because historically mediation has proven so highly effective that it negates the need for trials in a substantial percentage of cases and thus lightens the court’s workload. It is possible to settle even the most difficult cases at mediation. I have been surprised to reach settlements that I thought would not be possible in highly conflicted matters. You should attend with an open mind.
In the event that the case does not settle, nothing that was said at mediation and no offers which were made at mediation will be admissible at trial. Even if the case does not settle, mediation has value in that you and your attorney will learn during the process some of what the other side considers to be their primary arguments. In addition, the down time when the mediator is in the other room allows you to discuss trial preparation with your attorney.
It is possible to mediate without attorneys present; however, the concern is that you will not be receiving legal advice on the pros and cons of any offer received, and you will not have a valuable resource available as you consider making and responding to offers. Most family law mediators are attorneys; however, they are not permitted to give a party legal advice in their role as mediators.