Mediation can be the ticket to a faster, cheaper, and more balanced resolution to almost any common family law issue. From divorce settlements to child custody arrangements, mediators help individuals agree on a compromise without the need for competing lawyers, or worse, a trip to court. This article explains some of the nuances of family law mediation, including:
- How a fair and balanced negotiation process can be achieved through mediation.
- What happens when mediation fails, and why it might be worth it to try anyway.
- How mediated agreements differ from attorney-led negotiations, and how to make the former legally binding
What Role Does a Mediator Play In Family Law Negotiations?
Family law struggles can be delicate. The issues at stake are important, the circumstances inevitably life-changing, and the emotions of many parties running high. To do a good job of bringing parties together toward a compromise, a mediator has to be clear, honest, and purposeful.
Their work always begins by setting up the process and explaining what mediation is. A good mediator will use this time to set the tone, build trust and rapport, and begin assessing the problems in play.
The next step is often a questionnaire form. Each party must fill them out, with the understanding that they will be shared with the other party. Everyone needs to know everything, transparency and honesty are essential to good mediation. Secrets are for attorney-client privileges. Mediators must remain neutral and make sure that both parties are on the same page and receive all communications within the mediation process.
This ensures a fairness that individuals might not find in a traditional trial when dealing solely with attorneys.
How Does a Mediator Facilitate Communication And Ensure A Fair And Balanced Negotiation Process?
Another tool any good mediator will use is meticulous note-taking. They will take careful notes of every single mediation session and send each party a copy so they can keep track of the progress of mediation.
You do not want to pick up after two or three weeks and have people unsure of where they left off. Those notes ensure everyone knows exactly where they left off and what was discussed or decided so far in the mediation process. This not only facilitates further communication but also helps ensure a fair and balanced negotiation.
Transparency is also important between parties. For example, if there is any money involved (such as during a divorce or even pre-nuptial agreement), parties will be asked to exchange net worth statements and statements from all of their sole accounts. If one spouse has an account solely in their name, they will be asked to share a statement of its worth, to verify any oral declarations. Such transparency is essential and it is the job of the mediator to encourage and facilitate it to ensure a fair and balanced process.
Unlike in a courtroom, however, a mediator cannot enforce such transparency.
What Happens When Parties Do Not Wish to Share Information During Mediation?
A mediator will generally ask for full transparency, especially on any issue or topic related to the dispute or settlement. Unlike in litigation, however, the parties can essentially do whatever they want to do.
If both parties say they do not need to exchange bank statements, it’s not a problem. The mediator will tell everyone what is recommended, but if the parties don’t want to go through the time and expense of doing so, that is their decision. The mediator will simply put into writing in the eventual agreement that both parties were recommended to exchange the given statements or documents and that they declined that recommendation.
This absolves the mediator of responsibility for any dishonesty by the parties but can sometimes.
What Happens If an Agreement Cannot Be Reached Through Mediation?
If parties cannot come to an agreement through compromise and mediation, they are left with the original alternative: going to court & pursing litigation. If they have already filed a divorce or Family Court process, then they will simply continue with the case before the Judge or Referee.
If there’s no pending case when mediation fails, the parties are simply recommended to file their divorce or petitions in Family Court and proceed with litigation.
If the mediation failed early enough in the process, they will also be reimbursed the remainder of the retainer that they paid, so those costs are not lost if the mediation goes nowhere.
Are The Agreements Reached During Mediation Legally Binding? What Is the Process To Make Them Enforceable?
Once an agreement reached through mediation is signed, acknowledged, and notarized, it is a binding legal contract between the parties. However, there are some differences in what a mediated agreement can legally do.
For example, one key difference between a mediation agreement and a court order is that a mediation agreement cannot garnish wages. If there is a child support issue or unpaid alimony the other party cannot take the agreement to a sheriff and ask them to garnish this person’s wages because they defaulted on the agreement. Instead, to deal with such an issue or other similar constraints, they have to turn the agreement into a court order.
To do so, they would have to go to Family Court and get an order of child support or spousal support, with the mediated agreement incorporated into it. When the petition is filed, the agreement can be attached as “Exhibit A,” showing that the other party already signed a mediation agreement several months ago. Since the spouse is failing to pay, the court can then be asked to issue an order based on the agreement.
Likewise, with a married couple, they would simply file a divorce case and submit the agreement to the Judge as part of the “judgment package”. Then they can ask the Judge to issue a judgment of divorce that would incorporate the agreement which can be enforced like any other court order.
How Does Mediation Differ from Traditional Attorney Led Negotiations?
The key difference is that you have a neutral attorney working with you as opposed to two adversarial attorneys in the traditional or regular divorce route. While this can facilitate coming to an agreement, there are some limitations.
A mediator cannot give legal advice to the parties without breaching the condition of neutrality. The party wanting legal advice will have to consult with their own attorney before returning to the negotiation table.
Mediation is a process that could very well save you considerable time and money if you feel the other party is going to be reasonable and rational. It is often worth a shot to try mediation – if it works, you will end up saving money and more often than not have a considerably more pleasant and amicable experience.
For more information on the Duties of A Mediator In Family Law Negotiation Procedures, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 362-3080 today.