Mediation Fundamentals
Mediation is required in virtually every civil case, including family law disputes. The mediation requirement creates a philosophical tension because mediation is technically supposed to be voluntary, yet the court obligates you to attend. Mediation is private. You may make offers, and the other side may make offers and say things, none of which may be used in court later. The judge will only know that you attended mediation and either settled your case (or part of it) or not.
Twenty years ago, mediation might last only a couple of hours. Mediations were so brief that mediators started charging a two-hour minimum. That is not the case anymore. Set the entire day and evening aside. Sometimes, we may ask you to be prepared to return to mediation the following day. Our worst experiences in mediation have been when one of the attendees, including the mediator, was in a hurry because they did not budget enough time.
Most of the time, each side will be expected to pay 1/2 of the mediator’s fee. Deviations from that arrangement are rare. Please make sure your retainer with us is replenished and has enough funds to pay for mediation preparation, our time at the mediation session, and at least 6 hours of the mediator’s time.
The mediator will probably be a lawyer, but they are not your lawyer. Their job is to try to find areas of compromise and reach an agreement. They are not against you, but they are not your representative either.
Mediation is serious but informal. Dress comfortably. Feel free to bring a drink or snack. There may be lots of downtime when the mediator is in the other room, so consider bringing a tablet or laptop with a charger or a book.
The mediator cannot make you do anything. You have the right to leave the session with no settlement. However, if you reach an agreement with the other side, that is the deal. You may be very limited in your ability to change the terms of any agreement that you reach. If you start trying to change the deal, you invite the other side to try changing it too. The law in this area is developing, and judges can enforce agreements even when one side — or both sides — try to back out of it later. So reneging on an agreement could have consequences, including even an award of attorney fees against you for the trouble associated with enforcing an agreement.
If you are close to an agreement but unsure, let your attorney and the mediator know. It is possible to reach a tentative, nonbinding agreement so that you have more time to consider your options. It may even be possible to schedule a second mediation session. Communication is key.