Mediation is a form of voluntary alternative dispute resolution. Mediation is used in family law in various contexts: divorce, legal separation, custody and placement disputes, grandparent visitation disputes, and pre- or post-nuptial agreements. Mediation in these contexts are discussed below.
The mediator is a neutral third party who helps to facilitate communication between the interested parties. The mediator is not an advocate for any of the parties and cannot provide legal advice. It is often encouraged that parties obtain their own attorney to consult with during mediation. If there is an agreement between the parties, the mediator puts the agreement into writing for the parties. The fees and costs of the mediator is shared equally between the parties.
Before Filing for Divorce
Mediation can be a cost-effective and successful way to resolve issues in a divorce. Spouses who are considering divorce may engage in the mediation process before filing. By doing so, the spouses have a chance to flesh out the issues and come to a mutual understanding on their own pace before the divorce papers are filed. By engaging in mediation before filing, the spouses can come to an agreement and avoid having to go to court more than is necessary.
After Filing for Divorce
Parties can engage in mediation after the filing of divorce to address all of the issues that arise in the divorce or only specific issues they choose. If the parties have attorneys, they may choose to have their attorneys participate in the mediation process. Some counties require that the parties are referred to mediation when there are financial issues while other counties only require a mediation referral when there are disputes regarding custody and placement.
Parties can agree to mediate any issues that arise after the court has entered a final order. In the court’s order itself, the parties may be required to try mediation before filing a motion with the court. When using mediation in post-judgment matters, the issues discussed in mediation are usually only those issues brought up in the post-judgment motion. However, the parties can agree to mediate issues not in the post-judgment motion.
When there is a dispute regarding custody and/or placement, the court may refer the parties to mediation. The parties will be assigned a mediator who helps the parties to resolve the issues of custody and placement. By agreement, the parties can discuss child support and incorporate their agreement into the mediated agreement as well.
Sometimes, the parties have previously agreed to or agree to use a mediator who they prefer. This will satisfy the court’s mandatory referral to mediation. This would be considered private-pay mediation and the mediator may charge his/her private-rate.
When there is a dispute regarding a grandparent’s petition for visitation, the parties may be referred to or elect to engage in mediation. Mediation may be a great tool for grandparents to discuss their request for visitation since the law does not favor interference with parental rights. Mediating issues of grandparent visitations allow the parties to discuss privately their concerns and come to a mutually acceptable resolution.
Couples can agree to mediate their nuptial agreements. Nuptial agreements can be entered into before (pre) or after (post) marriage. The mediation process involving nuptial agreements is unique in that the mediator facilities communication between the parties in such a way that focuses on the union rather than the break-up. However, the mediator is not a substitute independent counsel and the parties are still encouraged to obtain separate counsels.
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