Mediation? Mediation Defined.

“What is mediation?” should be the first thing people ask when they call me.  Instead, the first question is, “What does it cost?”  That’s a hard question to answer when I don’t know what it is you think I do.  Maybe I don’t even do it at all.  So what exactly is mediation?

Mediation is a self-determined process to create a plan with life guidelines for the future.  It’s self-determined because both parties discuss how they would like to run their life (apart) with no right or wrong answers.  Often times, family law can come into the picture as a litmus test as to how disputes might be settled if the conflict were to leave the mediation room.  Mediators can give legal information, but not legal advice, during the mediation even if they are a lawyer by profession.  The legal information is meant to provide a guideline for consideration.

The idea behind mediation is that families who are planning to live apart, find their ‘rules of engagement’ which can include who is going to see the children and when, who is going to make important decisions about the children’s upbringing such as religion, school and which doctor they are going to see.  And then there’s property.  How is the property, that was accumulated during the marriage, going to be shared?   And, of course, support.  There is child and spousal support to consider.  Sometimes there isn’t any and sometimes there is.

Support is typically the burning question in mediation.  It’s reasonable that it’s on the top of the list as spouses attempt to give meaningful thought about where they are going to live and what kind of lifestyle they can afford once they are on their own.  I tend to leave support to be the last thing to be discussed for a few reasons.  One, it’s impossible to determine child support without understanding the parenting plan.  So that has to come first.  Sometimes spousal support is negotiated because one spouse has given up a right to property or another spouse has taken on a joint obligation.  That spouse may want an offset or, at least, a consideration when it comes to the spousal support payment.  Also, if support were able to be calculated from the beginning it may taint all the other conversations going forward when it really should be negotiated because of all the other negotiations that have occurred.

What is mediation? It’s a place where couples come to set their ground rules and the mediator helps to facilitate the discussion and fill out all the legal documents that family law lawyers need to pen the agreement into a binding separation agreement.  Mediators cannot make any agreement into a legally binding document, even if they are family law lawyers as they must be neutral throughout the negotiation process.  As such, a mediator who is a family law lawyer cannot give legal advice during the mediation as it would make them less impartial.  Mediators cannot make decisions for your family.  That’s another common misunderstood fact.

It’s nice to have all your legal financial documents ready as well as your parenting plan to give to your lawyer to draw up your separation agreement.  Spouses often chose mediation because it’s more cost effective than resolving your disputes using a lawyer-only model and it can diffuse conflict and tension depending on which legal model you chose to use in your divorce.

If you wish to consider mediation as a process to resolve your issues please feel free to give me a call to discuss further.

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