How Does Mediation Work?
The Divorce Mediation Process
At Gwinnett Mediation, the mediation process will begin with an initial consultation which takes place either in person or over the phone. During our consultation of up to 30 minutes, the issues that need to be settled, the mediation process, and all of your questions will be discussed. If you move forward with scheduling a mediation session, we will decide whether to plan on scheduling one longer mediation session or multiple shorter sessions. This just depends on your schedule and preferences.
Once you arrive for mediation, we will usually begin in what is called a joint session. This is a meeting with everyone present. There will be an introduction to the mediation process by the mediator called an opening statement. Each party is then given an opportunity to give their own opening statement during which they provide a statement about the issues that need to be discussed from their point of view.
After the opening statements are given, the mediator will gather information from both parties in order to clarify interests, discuss areas of disagreement, and identify options for possible solutions. This will lead to the development of areas of agreement and a Settlement Agreement.
Throughout the process, the mediator will focus on the parties’ perceptions, their interests, and concerns. Since the mediator’s role does not involve providing legal advice (although the mediator can provide legal information), attorneys (if present) can be helpful in discussing legal principles and rights that may be involved with their clients. A common understanding of what is likely to occur if the case is taken to court can also influence the mediation.
Individual Breakout (The Caucus)
At times during mediation, it is helpful to meet with the participants individually. This is especially true when tempers are running high.
When the mediator meets with each individual separately, the individuals are able to disclose information to the mediator that they would like to be kept confidential from the other party. In these meetings, the mediator is able to talk to each individual and bring information back and forth to each person without the high levels of emotion that can result from being across the table from one another.
The Settlement Agreement and Parenting Plan
If an agreement is reached regarding the issues that were raised, a Settlement Agreement and Parenting Plan (if necessary) will be written up for you by the mediator. You will then be able to take this document either directly to the court, or to an attorney to review.
There are 4 potential results for any mediation:
Full Agreement – If a settlement is reached on all of the issues, the mediator will assist the parties in drafting the Settlement Agreement and Parenting Plan (if applicable)
Additional Meetings – If additional mediation sessions are needed, the mediator will assist the parties in scheduling those meetings.
Partial Agreement – If a settlement is reached on part of the issues, the mediator will assist the parties in drafting a Settlement Agreement on those issues.
No Agreement – If no agreement is reached, the mediation will have assisted in clarifying some of the issues and each party’s position on those issues. Typically, this information will be written up so that the parties are aware of the progress they have made.
What if mediation doesn’t work?
There are two separate situations in which mediation may not have settled the items that were brought to the table. One is that some items were settled and some were not, and the parties became too fatigued or had other time constraints that kept them from continuing the mediation session. The other is that no agreements were reached on any of the items discussed.
In this situation, it is often helpful to schedule another mediation session. It is clear that the parties made progress in settling some of their issues, and it is possible that by everyone getting some rest and coming back to the table, more issues will be able to be settled.
In this situation, the realization may be made that the parties are not able to compromise or agree on any type of settlement. Not all is lost in this situation, however. The parties have still gained quite a bit of clarification on their issues, and on how each party feels about their side of the conflict. This can make the process smoother and shorter if they decide to move forward with litigation.