It is recommended that parties considering a mediation first have an initial consultation with the mediator. This initial consultation can be via the telephone or in-person. The parties may choose to have the initial consultation together or separately.
During this stage, the mediator oftentimes will have the parties sign a confidentiality agreement, explaining that everything stated during the consultation or subsequent mediation sessions will be confidential. The mediator will then describe the mediation process and fees. He/she may have the parties sign an initial consultation agreement and go through a client intake form with the parties.
Importantly, this is the opportunity for the parties and the mediator to get to know each other. The clients should ask questions about the mediator’s experience and the mediation process. Similarly, the mediator will try to get a feel for the dispute and the issues that need to be mediated.
This is the meat and potatoes of the mediation process. Mediation sessions last for approximately two hours (can vary with mediators). Some mediators send written debriefs to clients after mediation sessions while others do not. Importantly, the mediator cannot give the parties legal advice (even if he or she is a lawyer); therefore, it is recommended that the parties have their own consulting lawyer during this period to ask him or her questions.
When financial disclosure is an issue (e.g., spousal/child support, equitable distribution, prenuptial agreement), the parties can agree during this period on what will be exchanged and by what method. For example, in the divorce mediation context, the parties could voluntarily decide to complete and exchange a Statement of Net Worth along with two years of financial statements. Parties may decide to get certain properties appraised. In mediation, the parties (and the mediator) make the rules instead of the court.
How many mediation sessions are required? This depends on a myriad of issues. Are children involved? Are there complex financial issues? How are the parties communicating? Oftentimes, parties have to work through various emotional issues before certain financial issues can be decided. Every person and each couple during the mediation process moves at their own pace. Some couples might be able to resolve a narrow issue concerning parenting time in one mediation session where another pair of parents might require five plus sessions to come to a final resolution.
The time between mediation sessions can vary significantly. The parties can go at their own pace. In some instances, parties have “homework” after mediation session and need a few weeks to work on collecting the required information for the next mediation session. In other cases, parties don’t want to lose momentum and need only a few days before their next session. In others, parties might want to take a month or two between sessions to spend time negotiating on their own and seeing how temporary arrangements are working. Again, the parties have the control on the timing instead of a courthouse.
Agreement or Memorandum of Understanding
The hope, but not always the ultimate goal of mediation, is to have terms for a final agreement. If the mediator is an attorney, he or she may offer to draft the final settlement agreement, parenting plan, or prenuptial/postnuptial agreement; however, it is important for the parties to then take the mediator-drafted agreement to their individual lawyers to review. Alternatively, the mediator can draft a Memorandum of Understanding (“MOU”) that the parties can then take to their individual attorneys – one of which will memorialize it into a formal document.
That being said, in some cases, parties do not wish (or need) a written agreement. For example, perhaps two parents are having a dispute about summer vacation and summer camp. They come to an oral agreement during the mediation session and don’t wish to amend their parenting plan (or custody and visitation agreement) or put this agreement in writing because they wish to address this issue each year as it arises.
Executing and Filing Necessary Documents
The final stage during the mediation process is to execute and file (if appropriate) any documents with the court. The mediator may no longer be involved in this stage. The parties may be working directly with their individual attorneys.
This is an excerpt from my new book “Onward and Upward: Guide for Getting Through New York Divorce & Family Law Issues” available on Amazon, Kindle and iBooks. This except is from my Chapter on Mediation. I am a trained mediator for divorce, child custody and visitation disputes, and commercial mediation. The book is chalk full of great advice on a myriad of family law issues ranging from prenups, child custody disputes, and divorce/annulments. The book’s special sauce is that it has over 48 authors, including many nonlawyer authors, writing on both legal and nonlegal topics. More info on the book can be found here.