Frequently Asked Questions about Mediation

For most of my clients, the mediation they attend for their divorce is the only mediation they will attend during their lifetime. Understandably, clients have many questions about the process and what to expect. Here are some of the most common questions I receive:

1. What is the difference between mediation and arbitration?

While both processes involve the use of a neutral third party, the neutral in mediation, the mediator, helps facilitate an agreement between the parties while the neutral in an arbitration decides what the resolution will be. The arbitrator essentially acts and the judge or jury in the case. As case is resolved at mediation only if the parties come to an agreement.

2. What is the format of mediation?

Generally, at mediation, both parties and the mediator initially meet together around a conference table. At that time, the mediator reviews the rules of mediation with everyone. Then each side, usually through the attorneys, inform the mediator of the issues to be resolved in the case and a general overview of the facts and arguments. This is the first time the mediator will hear anything about the case. The parties then “caucus”, which means that each party sits in a separate room, accompanied by their respective attorneys. The mediator acts as a “ping pong ball” moving back and forth between rooms until a settlement is reached. The initial meeting with each aide can be lengthy but subsequent meetings usually become shorter as the issues narrow and less background information is needed. If the parties agree to a settlement, the terms are reduced to writing and signed by the parties.

3. What if we don’t settle the case—will the judge or jury find out what I was willing to offer?

No, the mediation process is completely confidential and settlement negotiations are inadmissible in court. Neither party may call the mediator to testify in their case. Each party may also give background facts or strategy information to the mediator and, if they so specify, the mediator cannot repeat these facts or information to the other side. Offers of settlement, however, can be revealed to the court in the context of attorney fees after the substantive portion of the case is resolved to show that a party drummed up the fees by being unreasonable.

4. I do not want to see my spouse at mediation—can we avoid the initial meeting?

Most mediators will agree to meet with only the attorneys for the initial meeting if either party is apprehensive about a joint meeting.

5. Can my case settle if it doesn’t settle at mediation?

Yes. Many cases that do not settle at mediation eventually settle either at a subsequent mediation or by the exchange of written settlement offers between the attorneys. Sometimes cases do not settle at mediation because one or both of the parties are not ready. One way to help make sure your case will settle at mediation is to wait to mediate until you and your attorney have all of the information that you need to settle the case and you are emotionally ready to settle the case.

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