Will Mediation Work For Us?

If the thought of expensive legal fees and a long divorce process stress you, then consider mediation. Mediation, a process where a neutral third party provides a private informal way to discuss and try to resolve any conflict. Mediation has grown in popularity as a way to settle divorce. Mediators are licensed professionals who can arrange a binding agreement between divorcing couples without the higher costs associated with lawyers going to court.

However, mediation will only work if you and your spouse can first agree not to disagree and then negotiate a mutually-satisfying agreement. For a fee, a mediator facilitates the process and leads you to a binding agreement.

The following summarizes a typical mediator’s contract. Get familiar with it and compare it to how other mediators provide his or her services:

"This agreement reflects the commitment of each party to negotiate fairly, honestly and equitably throughout the mediation process."

  1. The mediator is compensated at an hourly rate (fees will vary by firm; $95/hour is a ballpark figure) for each mediation session, payable at the conclusion of each session. An additional fee (fee will vary by firm; $200 is average) is charged to prepare any written memorandum of understanding or agreement and is payable prior to its preparation.

  2. All parties agree that the process of mediation does not provide legal advice or representation. Any document signed by both parties as a result of this mediation is legally binding and will affect their legal rights. It is advisable to retain and consult independent legal counsel at any time prior to and during the mediation process and before signing any draft agreement. (Note: You will still save time and money, because your lawyer will be required to do less work.)

  3. All information disclosed orally or in writing during mediation is confidential and both parties agree not to request the mediator to release this information nor be summoned to court regarding it.

    Two exceptions:

    1. A mediator is required by law to report child abuse.

    2. Confidentiality is also waived if a complaint filed against the mediator requires the mediator to defend him or herself against the complaint or proceeding, or if the court system investigates the complaint.

  4. Either party may choose another alternative to mediation, such as the court system, before the mediation is completed and signed. Each party has notified the mediator of any cases or charges pending in any court with the other party and agrees to suspend all litigation while mediation is ongoing. Their lawyers may act as advisors and attend mediation, but shall not speak for the parties during the mediation sessions.

  5. In divorce mediation, each party agrees to fully disclose his or her assets, income, liabilities and expenses and to submit present and projected budgets if required. The mediator may terminate the mediation if it becomes evident that there is failure to participate in good faith by either party. This includes failure to report assets or income or when one party places undue pressure upon the other party.

  6. The mediator is a neutral facilitator but cannot assure a fair agreement. Therefore, the mediator cannot give advice, make an evaluation or offer an interpretation. Therefore, it is advisable to retain an attorney during the mediation process.

  7. Printed material given by the mediator to either party shall be regarded only as general information, not advice, including a list of lawyers known to be familiar with divorce laws. The lawyers’ list is only a partial one and does not attempt to judge or measure the qualifications or ethics of lawyers on the list or not on the list. Professional tax advice should also be considered by both parties.

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