All cases are different, and, therefore, each mediation is different. The process may vary slightly for each case. The following step-by-step description of the process describes a case in which the parties use mediation for the entirety of their divorce action.
Contacting The Mediator
One or both of the parties contact the mediator to set up an initial meeting. If one party contacts the mediator, the mediator will take simply factual information such as the length of the marriage, whether there are children involved and basic contact information. The mediator will be careful not to get into the details of the case during the initial call in order to maintain neutrality.
The parties meet with the mediator for an orientation about the process and to outline the issues for the mediator. The parties may agree to the order of importance of the issues to be resolved and may discuss the resolution of one or more of those issues at the initial meeting. For some parties, the mediator will recommend initial meetings with each party independently. The mediator never provides legal advice to either party but may serve to educate the parties about the legal process.
One Of The Parties Must File An Action With The Court (Litigation Cases Only)
Note: Premarital and post-marital agreements, and separation agreements regarding parenting plans do not require a court filing.
If the parties have not already filed a legal action with the court (divorce, domestic partnership dissolution, legal separation, parentage action), the mediator will explain the need for filing a legal action in order to resolve their case. Parties are always advised to seek independent legal counsel before taking any action in the courts as the mediator will not provide legal advice to either party.
The Parties Must Exchange Information
Each party is required by law to disclose financial information to the other party. After the parties have complied with the statutes regarding disclosure, the mediator will facilitate the informal exchange of any additional information necessary to facilitate a settlement in the case.
Possible Retention Of Experts
In some cases, the settlement is facilitated by receiving the opinion of neutral experts such as real estate appraisers, forensic accountants, vocational evaluators, child development experts, parenting coordinators and business valuators.
Facilitation Of Settlement
Throughout steps one through five above, the mediator will facilitate agreements between the parties on smaller issues (i.e., the timing and exchange of information, temporary support agreements, temporary parenting time plans). Once the parties feel confident that each has sufficient information from which to make an informed decision about all of the issues in the case, the mediator will facilitate a settlement on all issues. This process and the length of this process are dictated by the parties’ willingness to participate and the complexity of the issues.
Preparation Of Summary Of Mediation Session
The mediator will provide a confidential memorandum of understanding following each mediation session. This enables the parties to reflect on the session and to understand what was agreed upon and what is expected for the next session. If the parties reach tentative agreements in mediation, the terms will be memorialized in writing and the parties will be encouraged to seek independent legal counsel to review the tentative agreements and advise the party of his/her legal rights.
Finalization Of Agreements
After the parties have had an opportunity to review their agreement with independent counsel, the mediator will prepare the documents necessary to finalize the agreement for signature and submission to the court.