Mediation is a process whereby the parties and their attorneys meet with a neutral third party in an effort to resolve their case. In the family law setting, the mediator will typically be another family law attorney who has experience in the court in which your case is pending.
If the parties are able to reach agreements on the contested issues, the mediator will memorialize those agreements in a document called a Mediated Settlement Agreement, which will be signed by the parties, the attorneys, and the mediator. That document may be only 4 or 5 pages long. The attorneys will then take that Mediated Settlement Agreement and incorporate it into a formal, enforceable order that may be 20-40 pages long.
The benefit to executing a mediated settlement agreement is finality and certainty. You will leave the mediation with a binding, irrevocable agreement, which is not subject to buyer’s remorse afterward. You will know the specific terms of your case’s resolution and can sleep better having mitigated your risk that things may not have gone as well in court as you would have hoped and can feel good knowing that you—and not a stranger in a black robe—has crafted an agreement that you both can live with and that will serve the best interest of your children.
If you don’t reach agreements at the mediation, certainly you will each have your day in court. But it’s important to know what that really means. It means that you’ll both pay attorneys a significant amount of money to have a judge who doesn’t know you or your family make decisions about your life that may not work well for either of you. In many instances, the Court will apply a cookie cutter result to your case. The judge is not likely to chastise the other person for any wrongdoing—even extensive wrongdoing. The judge will usually just announce the ruling and move on, and you may be left with no satisfaction from the result and no control over the result. To the contrary, mediation allows you to craft a result that works for you and your family. But understand, no one leaves a successful mediation feeling like they got 100% of what they wanted because give-and-take is a key component, but it will likely be a result that you can live with.
At mediation, it’s important to leave behind any ideas about winning or losing and focus on reaching an agreement that makes sense for both of you and that will enable you to salvage a civil, pleasant enough relationship moving forward for the benefit of your children and for your own peace and sanity.
Attorney Courtney Kaisand is a certified mediator and offers mediation services.