1) How much will mediation cost?
Cost will depend on the amount of work you are willing to do outside of mediation sessions, whether your mediator drafts any final term sheet or agreement, whether you involve other professionals, and the number of sessions you need to comprehensively move your family forward. Despite the cost, mediation is historically much less expensive than going through the full court process to a final trial. Even more, mediation is less physically and emotionally exhausting than engaging in litigation, and more private for your family. Mediation is more flexible and can move faster than many courts, so there is also a savings in time, and a clearer path to closure.
2) The other person is refusing to go to mediation. Is it still possible to mediate?
Mediation is a voluntary process. Both people need to agree to go to mediation and, to get the most benefit, both people need to be engaged. Since mediation is voluntary, if you start the mediation process, and it is not a fit for your family, you can end mediation at any time.
3) I am afraid of the other person. Is mediation appropriate for me?
Mediation may be appropriate for you. A skilled mediator can help structure the process so that you do not have to interact directly with the other person, and ensure precautions are put in place prior to any session to maximize your comfort and safety. A mediator, while mandated to keep information in the mediation confidential, may disclose credible threats of harm to ensure everyone’s safety. Mediation, in many ways, may be a safer space than a courtroom, which is often open to the public, and involves both people in the courtroom at the same time, where you may be in a position to be directly confronted by the other person or their legal counsel in an adversarial way.
4) Can a mediator decide who is right or wrong?
A mediator is a facilitator, a communicator, an educator, and a neutral sounding board that helps people reach creative comprehensive sustainable solutions. A mediator, however, even if he or she is a lawyer, cannot provide advice and cannot make a decision on your behalf. You, as a participant in mediation, have self-determination to reach a final solution and at no time are you required to reach a final solution in mediation.
5) I do not want to mediate. Why should I agree to go to mediation?
If you engage the legal system in the United States, you may be required to attempt at least one mediation session, often through a court appointed mediator. If you engage in private mediation, you have more control over the selection and scheduling of the mediation, including choosing a mediator who may have the special skillsets that can help your family’s unique circumstances. If you start the mediation process, you can end it, voluntarily, if it ultimately is not working for your family. If you forego mediation and engage in litigation, you are placed in a situation that has much more restrictions, limitations, and structure. You may ultimately end up in a few day trial, only able to present information that falls within the restrictive court rules of evidence, with a judge who has a very limited picture of your family’s unique situation, and fewer resources at his or her disposal to craft a comprehensive and sustainable court solution. Mediation provides control – you have control over the end solution, over the tone and communication, and over the flow of the sessions.
6) Is mediation therapy?
Mediation is not therapy. While some mediators may have education in mental health disciplines, they are not providing therapy. Mediators are impartial and are skilled at communicating, knowing resources, knowing the questions that need answers, and, having helped many families in similar situations, they can educate, enlighten and help problem solve.
7) We can barely talk. Why should I try mediation?
Nearly every couple who is separating and going through a transition to a new family structure will have tense situations and difficulty communicating. Mediation can structure the process to manage and respect emotions and the mediator can help the parents get past impasses, help them communicate, reframe issues and uncover mutual interests. Mediation, in many cases, can be the springboard to helping start better communication moving forward.
8) I need an advocate, not a mediator.
Mediation can incorporate your advocate into the process. Lawyers can play a valuable role with gauging alternatives, brainstorming options, and testing it against what may happen in a legal process. Lawyers are welcome to represent their clients by attending mediation sessions or mediation can pause mid-session to allow participants to seek outside guidance from their legal representatives.
9) My situation is too complicated for mediation.
Mediation is geared towards more complex situations than a court trial with its significant limitations. Mediation can have a methodical and thorough approach, and can incorporate other skilled professionals, research, referrals and resources in a cooperative manner.
10) I do not trust the other person. They will lie in mediation. Should I still go to mediation?
Unfortunately, if the other person is prone to lying, they will probably lie in court as well. While disclosure, within the confidential structure of mediation, is important to reach a comprehensive resolution, even a court cannot guarantee full disclosure, and in a situation with multiple jurisdictions and multiple legal regimes, it may be impossible to actually obtain relevant information unless through voluntary channels.
11) When can I mediate?
Mediation can be appropriate at any stage, and can address any issue, whether it be situational, time limited, one time issues or complex long term issues. Mediation can be used before engaging in the court process, parallel to any court process, or even after the court process. Mediation can even be used before you marry or formalize your relationship in some type of legal union, or throughout your relationship to help resolve disputes.
12) I do not have access to my children. Can mediation help me?
Court processes may take time, and there is always the risk of receiving an unfavorable result. If you mediate, you can structure the process to address more immediate issues first, such as interim access to your children. You may be able to employ a mediator faster than you will receive a court date. Especially in cross-border cases, including with countries that have no legal mechanism in place to actually ensure a court order is enforceable, reaching a resolution where both parents have a role may improve your chances of finding a workable and executable solution.
13) Can my child participate in the mediation?
If you are working with a skilled mediator, that person can help you incorporate the child into the mediation process, either directly if everyone agrees, or through a child focused approach.
14) Can I bring a friend or someone else to help me in the mediation?
If everyone agrees, the mediation process can be tailored to include other people, both as support to the participants, as sources of information, or to give an outside perspective. Whether the other person is a friend, family member, child specialist, financial planner, lawyer, or someone else, they would be bound by the same rules of confidentiality.
15) I am in the middle of legal proceedings. Do I have to stop the legal proceedings to participate in mediation?
The mediation process can run parallel to your legal proceedings, but your mediator will need to know that you are in court, so that the mediator understands any restrictions, particularly so that any mediation sessions can be scheduled within the court’s timeframes.