You have probably heard about Mediation either on TV or in the media but very few times do you have someone explain what Mediation is and what it isn’t. In this post, I am going to take a deep dive into what you need to know about this important stage in a family law case.
The first thing I want to address is the fact that mediation can be utilized at any time in the case cycle but having an understanding of the nuances of the case is important before you spend the time, money, and effort towards a Mediator.
We often have people call and request mediation before the case is even filed. What this means is there is typically a lack of communication between the parties or that this is going to be a contested matter. There are cases that can greatly benefit from a mediation in the very beginning but these cases are often limited to uncontested divorces and cases that do not involve children.
If you are finding this page from our Stages of an Oklahoma Family Law Case series you will see that I included Mediation after a Motion to Enter and closer to the Trial Phase. The reason for this placement is that most Judges are going to require the parties to mediate prior to the Pretrial Conference and Trial. This is the first time that the Mediation debate has been brought up for a majority of cases.
You may also have a Judge order Mediation at the Temporary Order hearing. This often signifies that the Judge either feels like the case can be resolved amicably or there are only a few issues that need additional information and attention that can be sorted out without the Judge’s help. Think credit card balances and joint debts.
After Mediation is ordered or agreed to, the parties then select a Mediator. This can happen in several different ways.
First, you can utilize the state-funded Early Settlement Mediation services. These are free services and are scheduled based on the availability of the staff. These mediations are often sufficient for factual issues and not hotly contested matters. When you have Early Settlement Mediation all parties and attorneys are in one room facing each other across the table. The attorneys use discretion in deciding if this option is best.
Second, you can select a private mediator by agreement. The private mediator is an attorney with experience in these issues and is an impartial third party helping to move toward settlement or resolution. In this option, the parties are usually separated into different rooms and the mediator travels back and forth. These are beneficial situations for hotly contested issues, matters involving VPOs and abuse, and matters where an experienced mediator is necessary because of the complexity of the case.
The parties can decide on a mediator in either option. The cost is the determining factor in 75% of Mediations.
This is the most misunderstood factor in this topic. Mediation does not include someone with Judge powers who is going to set the opposing party straight and tell them how it is. The Mediator is there to help the Court narrow the issues down to the last remaining topics that cannot be agreed upon to save time and money at Trial.
Once again, there has to be an agreement from both parties to be successful in Mediation. If we attend Mediation and the other side says, “I’m not agreeing to anything,” the Mediation is over.
I often have people think that Mediation is going to be the magic spell that is going to remedy all the issues. Now sometimes this does work in our favor because the public’s perception of mediation is just that. The time you settle everything. The other times, we get closer but Trial is still necessary.
Once you attend Mediation and have issues that are agreed upon the Mediator will prepare what is called a Mediation Statement. This is a document that is a good faith promise to agree on these issues in the same way in the Court. BUT, this is not a Court Order and is not the same as the Judge telling the parties what he/she decides.
The important thing about the Mediation Statement is that it shows either compliance and work toward a resolution or it shows the stagnation of the issues and the need to continue the case.
It is important to note that a Mediation is not an Arbitration, which is binding. These are two separate legal functions.
Absolutely and it is encouraged to do so. The most important aspects of the case need to be presented and brought for agreement. The minor issues that can be decided on amongst the parties can often be handled easily after the big issues are overcome.
If a settlement occurs at Mediation, the attorneys will draft what are called Agreed Orders that will memorialize the Mediation Statement and all other procedural issues so that the Judge can review and sign.
Most Judges will allow cases with attorneys on both sides to drop off the paperwork to be signed without a final hearing. If one side does not have an attorney then it is commonplace for one last hearing to occur to make sure both parties have a chance to be heard and the Judge confirms both parties understand what they are signing.
We continue with the Trial Phase and prepare our evidence.
If I have learned anything in my time in the law, not many things happen as clean and easy as you expect. Every case is different and every family has different needs. This “What to Expect” is not inclusive and is by far not a complete list. We highly recommend that you meet with our attorneys for a consultation to learn more about your specific needs.
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