Disclaimer: These pages have been prepared by Rose-Anne Landau, Attorney-Mediator and Arbitrator for informational purposes only and are not legal advice. I am merely providing information on the mediation process pertaining to general and family law matters. This information is not a substitute for obtaining legal counsel or other expert advice. Any actions you take in your family law matter are solely those that you pursue as a result of your individually obtained legal counsel or other expert advice and your own independent judgment.
FAQs MEDIATION
Q. What is Mediation?
Mediation is a way to resolve disputes outside of court. When you use mediation, the parties, and not a judge, jury, arbitrator or other third party make all the decisions in your case with the help of a mediator. A mediator is a third party who is unbiased and remains neutral to both sides. The job of the mediator is to facilitate discussion about the issues in your case in a structured way and then help you negotiate with the other side in order to resolve the issues in your case in a structured way and then help you negotiate with the other side in order to resole the issues in your case. Mediation may be court ordered, but so long as the parties are acting in good faith, you may stop the process short of reaching settlement if you feel you are unable to reach an agreement.
Q. If the Mediator is a lawyer, can she give advice too?
No. A mediator should never dispense legal advice even if the mediator is an attorney. If an attorney/mediator does so, she is compromising her neutrality by representing your interests. A mediator may not represent a party in the case nor advocate for either side. The purpose of mediation is to resolve the issues based on the interests and goals of the people involved in the dispute, not on whether one of the party’s positions is the correct one. In that way, mediation is an interest based negotiation process, and is not positional.
Q. So if the attorney/mediator can’t give legal advice, can I have my own attorney?
Absolutely. Mediators often work hand in hand with the attorneys hired by you to represent your interests. If you need legal representation, or want to know the benefits and risks of the deal you are reaching in mediation, you should definitely get an attorney to at the very least consult with you while you are going through the mediation process. This legal advice may be obtained early in the mediation, by legal counsel's review of a near-final draft Agreement, and by counsel's review of the final Agreement. This level of consultation will dramatically elevate your comfort and confidence in the final agreement.
Q. Is mediation less costly than litigation?
If you are talking strictly about whether mediation is financially less costly, that depends on the nature of your case, whether you and the other side are hiring attorneys, and whether you are using experts for certain aspects of your case. If you are talking about emotionally or psychologically less costly consider the positive attributes of mediation. You are making all the decisions yourselves. You are not at the mercy of a judge or a jury who may rule against you. You control the process and you control the outcome.
Q. What if we don’t settle in mediation?
If you don’t settle in mediation, consider another form of alternative dispute resolution before embarking on a full on battle in court. And if you need to go to court in order to litigate your issues, consider having any agreements already reached memorialized in writing and signed by the parties so at least some portion of your case has been resolved.
Moreover, please be mindful that if you do end up in court, absent express consent to release the mediator, what is said in mediation remains confidential and the mediator can not testify for one party against the other. Also, if the other side tries to bring in evidence of what was said in mediation, most courts, with very certain exceptions, will not allow that evidence since it was part of the settlement process.
Q. If we do settle, what do we need to finish the case?
Generally, if the case settles, the mediator will draft a Memorandum of Understanding which lists the agreements that the parties have reached. Once that is signed and notarized it is a binding contract.
Q. I want to go to mediation but the other side is skeptical. How should I approach this issue?
Since mediation is an informal voluntary process, if the other side does not want to mediate, you cannot force the issue. However, if you approach the other party with an olive branch rather than a machine gun, chances are, you may get your opponent to be a team player. Ask your opponent if it wouldn’t be prudent to have all of your issues aired in front of a neutral third party who helps you resolve your own dispute. Wouldn’t it be better to get issues off your chest in a safe and productive manner versus risking presenting the same issues to a judge and having the evidence being denied and objected to. In my experience, every dispute carries a highly charged undercurrent of emotion that a court simply cannot accommodate when it focuses on the law. A mediator can facilitate problem solving in a way that salvages relationships and reduces animosity as well as help create a global settlement addressing all of the parties needs, even if they are not necessarily issues that a judge would hear.
Q. My friend went to mediation and she said it was more like a therapy session. Is that what mediators do?
No. Mediators, even trained mental health professionals, should never act as therapists in a mediation session. The goal of the mediator is to progress the parties toward resolution of their issues, not shrink their heads. However, a good mediator will get the parties thinking about the way in which the dispute may be negatively affecting the parties emotionally and therefore hindering progress.
The following section is designed to help those who need additional information specific to family law issues such as dissolution of marriage and parenting issues.
Q. What specific issues get discussed in a dissolution of marriage mediation?
The paramount concern is the best interest of the children. In that regard, you need to be prepared to discuss a parenting plan, including how you and your spouse will exercise parenting time with the children during the school year, summers and holidays, how will important decisions regarding education, medical and religious issues be made and other issues that affect decision making responsibilities for the children. The amount and payment of child support will be addressed. You will also have to be prepared to discuss allocation of debt, division of assets, and division of property. Lastly, your settlement agreement will be forward looking, so you must think about the long term ramifications of any agreement that you enter into.
Q. What does a traditional mediation look like?
While the issues in your divorce may be discussed, negotiated or resolved out of the following order, below is a blueprint for mediating a divorce that gives you an idea of how a typical mediation proceeds.
We will first have an introductory meeting where I will describe mediation, provide you with a negotiating framework for your settlement, and answer your questions.
Child custody: This session defines and discusses parental responsibility and allocation of decision-making authority (formerly known as “custody”), and includes preparation of a parenting plan appropriate for court.
Child support: This session concerns income and expenses as well as an overview of present and future legal child support issues such as payment of health insurance extracurricular activities and extraordinary expenses and post-secondary education expenditures.
Property division: The division of assets typically begins with an in-depth look at the marital house, and provides options of dealing with this asset. There will be some discussion of the tax consequences at present and future transfer and sale, and financial and tax implications of sole or continued joint ownership. For complex tax issues, you are best to consult with an expert.
Asset and liability division: A continuation of property division, including pension plans, employee plans, savings accounts, stocks and bonds, vehicles, business valuations and house contents. Liability decisions include responsibility for mortgage, equity lines, car loans, promissory notes, life insurance and pension loans, credit card debt and all other debt. We will also cover medical, dental, life and disability insurance and responsibility for uninsured expenses, child tax exemptions, tax filings and issues unique to your case.
Spousal support: Also known as maintenance, and formerly called “alimony”, we will review the statutory factors and apply them to your case for discussion purposes.
After Mediation has been completed, I will prepare a document called either a Memorandum of Understanding or a Mediated Separation Agreement. You will each receive a copy for review. Ultimately, a signed and notarized Mediated Separation Agreement will be filed with the Court to dissolve your marriage. You may also request that I prepare a partial Agreement including only the items reached at an individual session after that session is completed.
Q. What kind of preparations should I make for mediation?
The very first thing you need to ask yourself is, “what are my interests and what are my goals?” Nothing gets people to an impasse quicker than lack of clarity of desired outcomes. You need to have a good idea of what you will agree to and compromise on before you mediate. If you do not have enough information in order to begin to negotiate on a certain issue, be prepared to come to mediation to ask for whatever documentary or other evidence you need in order to create a goal.
Q How long will the mediation take and how much will it cost?
There is no accurate way of predicting exactly how long mediation will take or how much mediation will cost, as these issues depend on whether you and your spouse are capable of reaching agreement as well as the nature and complexity of the issues. Some cases are finished in one two hour session. Others take several sessions. If we are making headway in your case, we may prolong a meeting to maximize the momentum.
Q. My spouse and I already agree on a lot of issues. What will you do as Mediator?
The first place I start in mediation is articulating those issues upon which you have both already agreed. We will then use those agreements as a foundation for your overall Agreement. The standards that make sense to you on certain "easy" issues can often be applied to resolve other issues. We will want to be sure that your Agreement is well-informed and that you are aware of the many issues that you may want to consider. What is included in your Agreement is up to you. My goal is to support your well-informed decision-making.
Q. Who pays for mediation?
Responsibility for mediation fees is an issue to be decided by you and your spouse, and if feasible, you are encouraged to consider sharing fees to the extent possible.
Q. What about utilizing experts?
In some instances you and your spouse may want to retain mutually trusted experts for things like a valuation of real property, personal property or a business. Mediation participants often choose to jointly consult with an accountant or tax expert. If parenting concerns arise, parties may find it beneficial to obtain the thoughts and recommendations of a trusted child psychologist. Mediation participants may choose to jointly retain an impartial advisory attorney who, based upon an agreed-upon set of facts, may render an advisory non-binding opinion on how a court might resolve a specifically identified issue.
Q I have a specific question not addressed here. How do I get more information?
Feel free to contact me with any question, comment or concern you may have. My goal is to assist and support you through this very difficult and transitional time in your life. Give me a call at (303) 221-4748 or drop me an email at landaulaw@comcast.net. I look forward to working with you in the future.
Copyright © 2015 Rose-Anne Landau, P.C. All Rights Reserved
FAQs MEDIATION
Q. What is Mediation?
Mediation is a way to resolve disputes outside of court. When you use mediation, the parties, and not a judge, jury, arbitrator or other third party make all the decisions in your case with the help of a mediator. A mediator is a third party who is unbiased and remains neutral to both sides. The job of the mediator is to facilitate discussion about the issues in your case in a structured way and then help you negotiate with the other side in order to resolve the issues in your case in a structured way and then help you negotiate with the other side in order to resole the issues in your case. Mediation may be court ordered, but so long as the parties are acting in good faith, you may stop the process short of reaching settlement if you feel you are unable to reach an agreement.
Q. If the Mediator is a lawyer, can she give advice too?
No. A mediator should never dispense legal advice even if the mediator is an attorney. If an attorney/mediator does so, she is compromising her neutrality by representing your interests. A mediator may not represent a party in the case nor advocate for either side. The purpose of mediation is to resolve the issues based on the interests and goals of the people involved in the dispute, not on whether one of the party’s positions is the correct one. In that way, mediation is an interest based negotiation process, and is not positional.
Q. So if the attorney/mediator can’t give legal advice, can I have my own attorney?
Absolutely. Mediators often work hand in hand with the attorneys hired by you to represent your interests. If you need legal representation, or want to know the benefits and risks of the deal you are reaching in mediation, you should definitely get an attorney to at the very least consult with you while you are going through the mediation process. This legal advice may be obtained early in the mediation, by legal counsel's review of a near-final draft Agreement, and by counsel's review of the final Agreement. This level of consultation will dramatically elevate your comfort and confidence in the final agreement.
Q. Is mediation less costly than litigation?
If you are talking strictly about whether mediation is financially less costly, that depends on the nature of your case, whether you and the other side are hiring attorneys, and whether you are using experts for certain aspects of your case. If you are talking about emotionally or psychologically less costly consider the positive attributes of mediation. You are making all the decisions yourselves. You are not at the mercy of a judge or a jury who may rule against you. You control the process and you control the outcome.
Q. What if we don’t settle in mediation?
If you don’t settle in mediation, consider another form of alternative dispute resolution before embarking on a full on battle in court. And if you need to go to court in order to litigate your issues, consider having any agreements already reached memorialized in writing and signed by the parties so at least some portion of your case has been resolved.
Moreover, please be mindful that if you do end up in court, absent express consent to release the mediator, what is said in mediation remains confidential and the mediator can not testify for one party against the other. Also, if the other side tries to bring in evidence of what was said in mediation, most courts, with very certain exceptions, will not allow that evidence since it was part of the settlement process.
Q. If we do settle, what do we need to finish the case?
Generally, if the case settles, the mediator will draft a Memorandum of Understanding which lists the agreements that the parties have reached. Once that is signed and notarized it is a binding contract.
Q. I want to go to mediation but the other side is skeptical. How should I approach this issue?
Since mediation is an informal voluntary process, if the other side does not want to mediate, you cannot force the issue. However, if you approach the other party with an olive branch rather than a machine gun, chances are, you may get your opponent to be a team player. Ask your opponent if it wouldn’t be prudent to have all of your issues aired in front of a neutral third party who helps you resolve your own dispute. Wouldn’t it be better to get issues off your chest in a safe and productive manner versus risking presenting the same issues to a judge and having the evidence being denied and objected to. In my experience, every dispute carries a highly charged undercurrent of emotion that a court simply cannot accommodate when it focuses on the law. A mediator can facilitate problem solving in a way that salvages relationships and reduces animosity as well as help create a global settlement addressing all of the parties needs, even if they are not necessarily issues that a judge would hear.
Q. My friend went to mediation and she said it was more like a therapy session. Is that what mediators do?
No. Mediators, even trained mental health professionals, should never act as therapists in a mediation session. The goal of the mediator is to progress the parties toward resolution of their issues, not shrink their heads. However, a good mediator will get the parties thinking about the way in which the dispute may be negatively affecting the parties emotionally and therefore hindering progress.
The following section is designed to help those who need additional information specific to family law issues such as dissolution of marriage and parenting issues.
Q. What specific issues get discussed in a dissolution of marriage mediation?
The paramount concern is the best interest of the children. In that regard, you need to be prepared to discuss a parenting plan, including how you and your spouse will exercise parenting time with the children during the school year, summers and holidays, how will important decisions regarding education, medical and religious issues be made and other issues that affect decision making responsibilities for the children. The amount and payment of child support will be addressed. You will also have to be prepared to discuss allocation of debt, division of assets, and division of property. Lastly, your settlement agreement will be forward looking, so you must think about the long term ramifications of any agreement that you enter into.
Q. What does a traditional mediation look like?
While the issues in your divorce may be discussed, negotiated or resolved out of the following order, below is a blueprint for mediating a divorce that gives you an idea of how a typical mediation proceeds.
We will first have an introductory meeting where I will describe mediation, provide you with a negotiating framework for your settlement, and answer your questions.
Child custody: This session defines and discusses parental responsibility and allocation of decision-making authority (formerly known as “custody”), and includes preparation of a parenting plan appropriate for court.
Child support: This session concerns income and expenses as well as an overview of present and future legal child support issues such as payment of health insurance extracurricular activities and extraordinary expenses and post-secondary education expenditures.
Property division: The division of assets typically begins with an in-depth look at the marital house, and provides options of dealing with this asset. There will be some discussion of the tax consequences at present and future transfer and sale, and financial and tax implications of sole or continued joint ownership. For complex tax issues, you are best to consult with an expert.
Asset and liability division: A continuation of property division, including pension plans, employee plans, savings accounts, stocks and bonds, vehicles, business valuations and house contents. Liability decisions include responsibility for mortgage, equity lines, car loans, promissory notes, life insurance and pension loans, credit card debt and all other debt. We will also cover medical, dental, life and disability insurance and responsibility for uninsured expenses, child tax exemptions, tax filings and issues unique to your case.
Spousal support: Also known as maintenance, and formerly called “alimony”, we will review the statutory factors and apply them to your case for discussion purposes.
After Mediation has been completed, I will prepare a document called either a Memorandum of Understanding or a Mediated Separation Agreement. You will each receive a copy for review. Ultimately, a signed and notarized Mediated Separation Agreement will be filed with the Court to dissolve your marriage. You may also request that I prepare a partial Agreement including only the items reached at an individual session after that session is completed.
Q. What kind of preparations should I make for mediation?
The very first thing you need to ask yourself is, “what are my interests and what are my goals?” Nothing gets people to an impasse quicker than lack of clarity of desired outcomes. You need to have a good idea of what you will agree to and compromise on before you mediate. If you do not have enough information in order to begin to negotiate on a certain issue, be prepared to come to mediation to ask for whatever documentary or other evidence you need in order to create a goal.
Q How long will the mediation take and how much will it cost?
There is no accurate way of predicting exactly how long mediation will take or how much mediation will cost, as these issues depend on whether you and your spouse are capable of reaching agreement as well as the nature and complexity of the issues. Some cases are finished in one two hour session. Others take several sessions. If we are making headway in your case, we may prolong a meeting to maximize the momentum.
Q. My spouse and I already agree on a lot of issues. What will you do as Mediator?
The first place I start in mediation is articulating those issues upon which you have both already agreed. We will then use those agreements as a foundation for your overall Agreement. The standards that make sense to you on certain "easy" issues can often be applied to resolve other issues. We will want to be sure that your Agreement is well-informed and that you are aware of the many issues that you may want to consider. What is included in your Agreement is up to you. My goal is to support your well-informed decision-making.
Q. Who pays for mediation?
Responsibility for mediation fees is an issue to be decided by you and your spouse, and if feasible, you are encouraged to consider sharing fees to the extent possible.
Q. What about utilizing experts?
In some instances you and your spouse may want to retain mutually trusted experts for things like a valuation of real property, personal property or a business. Mediation participants often choose to jointly consult with an accountant or tax expert. If parenting concerns arise, parties may find it beneficial to obtain the thoughts and recommendations of a trusted child psychologist. Mediation participants may choose to jointly retain an impartial advisory attorney who, based upon an agreed-upon set of facts, may render an advisory non-binding opinion on how a court might resolve a specifically identified issue.
Q I have a specific question not addressed here. How do I get more information?
Feel free to contact me with any question, comment or concern you may have. My goal is to assist and support you through this very difficult and transitional time in your life. Give me a call at (303) 221-4748 or drop me an email at landaulaw@comcast.net. I look forward to working with you in the future.
Copyright © 2015 Rose-Anne Landau, P.C. All Rights Reserved