| YOUR FEARS: Your attorney has no doubt described the general procedures involved in a mediation. Nevertheless, you have a certain fear of the unknown. For many, the stress and anxiety of unresolved family law issues exist.
Each person will have different feelings. For some, being in the same room with a spouse creates stress. For others, the fear of "giving up too much" or somehow being "forced" to settle creates a reluctance to participate in mediation.
YOUR FEARS REDUCED: Your fears are not unusual, but mediation may help you: 1) resolve your case; 2) save significant sums of money otherwise spent in trial preparation: 3) enable you to move ahead with your life; and 4) resolve the issues in a mutually agreeable way, rather than have a trial with unpredictable results.
WHAT DO YO NEED TO DO: This is not a difficult path to follow. You will need to: 1) be willing and be prepared emotionally and mentally to work toward a settlement, 2) know that your attorney will be with you and is concerned for your best interests, and 3) read the following informal "rules" concerning mediation; they will speak to your concerns.
MEDIATION--THE PROCESS:
1. DEFINED: Mediation is a confidential process where a neutral third party, the mediator, works with the parties to help resolve disputes.
2. WHERE: Usually the mediator provides the space necessary to conduct a mediation; however, on occasion it may take place by agreement in the office of one of the attorneys in the case.
3. WHO WILL BE WITH YOU: You will be in a separate room with your attorney. You will not be in the same room with any other party to the lawsuit. Often the parties do not see each other at all during the entire process.
4. HOW DOES IT BEGIN: The mediator will talk with each party (and attorney) separately to determine the contested issues. Sometimes this can take an hour or more. Spending equal time with each party is not the issue. The mediator will take whatever time is necessary to understand the issues presented by each person.
5. WHAT DOES THE MEDIATOR DO NEXT: Once the issues and the position of each party are explained, the mediator will ask for, receive, and convey information from one party to the other, seeking to determine where areas of possible agreement may exist.
6. LENGTH OF MEDIATION: It is not uncommon for mediation to take an entire day. Negotiations can require substantial time. Although uncommon, occasionally a complicated case can require more time.
7. CONFIDENTIAL PROCEEDINGS: It is most important that each party understand that the mediation process is . Anything said or conveyed during the mediation process cannot be used in court later or "held against" a party at a later time. Very limited exceptions exist. This confidentiality permits each party to express honest feelings and permits offers of creative solutions toward a settlement without fear that what is said can be brought up later in other hearings or in court.
8. IS MEDIATION A TRIAL? The answer is an unconditional "no." Mediation is voluntary and requires the mutual agreement of the parties to be successful. The mediator has no power and cannot "order"anything, nor can either party impose his or her will on the other. Either the mediation results in a mutual, negotiated settlement of the issues or it does not.
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| 9. THE SUCCESSFUL SETTLEMENT: When an agreement is reached by the parties, it will be put in writing and signed by the attorneys and each party before the mediation session ends. |
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| Judge Don Koons Mediation Services offers experience with divorce, custody and child support and the knowledge and calm demeanor to help bridge differences and find resolution. |
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10. IS AN AGREEMENT BINDING? Yes. When an agreement is reviewed and signed by the attorneys and parties, it becomes legally binding. Usually the terms of the agreement will become an order of the court.
11. WHAT ARE THE CHANCES OF SETTLEMENT: Often it may seem that the emotional and stressful family law issues of property division, accusations of bad conduct, animosity, disagreements over custody, child support and visitation would be unlikely to result in a successful mediation. While no mediator or attorney can guarantee results, you should know and be aware that even in the most hostile of cases, mediation regarding these issues can be and often is successful. Sometimes each party realizes during the session that the fighting and hostility need to end. It would be a mistake to prejudge or refuse to consider mediation because of preconceived notions about the possibility of success.
12. MEDIATION FEES: Once you consider the serious expenses each party incurs in depositions, preparations for trial, expert witnesses, attorney fees and other expenses, clearly the investment of one day in mediation may be extremely cost effective financially, not to mention emotionally.
13. REPORT TO THE COURT: In accordance with the fact that mediation is confidential and privileged, the mediator simply reports to the court that the mediation was succesful or it was not successful. Nothing more is described to the court. A successful mediation agreement may be filed with the court, but without any comment about the negotiations or discusssions which may have taken place during the mediation itself.
14. SOME FINAL THOUGHTS: Each party can contribute to the success of a mediation by: 1) Being prepared--know the issues. For example, in property cases, know what property exists and its probable value; 2) Knowing that each side will need to be flexible. Mediation will require that each party be willing to compromise on some issues. This should not worry you. It is better that each party seek a known agreement, rather than have the unknown and perhaps the unwelcome occur at a trial; 3) Being patient. Some parts of mediation will be tedious and move slowly, especially early in the process. Bring something to read or occupy your time when the mediator is with the other party.
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