Many people are interested in potentially mediating their divorce dispute but want a bit more information about the process. This post will hopefully answer some lingering questions and give you more information to determine if mediation is right for you.
Q: My ex and I don’t get along. Do we have to be in the same room for a mediation?
A: Technically, no. Face-to-face communication is preferred, but mediation can be done over the phone, via webchat or in person. Even in person, though, both parties don’t necessarily have to be in the same room. Parties (and their attorneys) might be in separate rooms, with the mediator going back and forth between them to facilitate communication.
Q: How long does mediation take? Will I need to miss an entire day of work for it?
A: This is a difficult question to answer. The mediation will take as long as it takes. If there is only one disputed issue, and the parties are both really dedicated to finding a resolution, it can be over quickly. If things are a bit more contentious, and there are several big issues to resolve, the mediation could easily take a day or more. Because each family is different, there is usually flexibility about when sessions are scheduled, how long each session lasts and how many sessions are needed to reach a complete agreement.
Q: What if the mediation doesn’t resolve everything? Can a court consider the reason mediation failed?
A: Parties agree at the outset to the scope of the mediation. It might only be to decide a single issue or for multiple issues. However, under California law, what is said in mediation sessions cannot be used as evidence in court if that is where the parties end up. The mediator cannot be called as a witness and the mediator’s notes about the proceedings will not be admissible as evidence.
Q: If mediation fails, do I have to go to court?
A: The short answer is no. Even if mediation is not successful, there are other options for negotiating a settlement short of a court hearing. However, if there are one or more issues on which agreement is impossible, the only way to resolve it would be to have a third party make a binding decision. This can be a court judge or a private arbitrator who, by agreement, is given the power to decide. Court proceedings are public; arbitration proceedings are generally private.
Q: Is mediation binding?
A: They can be. Mediation is a voluntary proceeding, so the mediator has no decision-making authority over the parties. The results of a mediation will be legally binding if they are incorporated into a written agreement signed by all parties, however.