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What is Meditation in Family Law?
Mediation is a process where the two parties to the divorce negotiate divorce terms through an independent third party, known as a mediator. When a client of the Jimenez Law Firm agrees to mediation, we are with them through the entire process. We help them negotiate the terms of the divorce, the division of shared property, child custody, and more.
How Does Mediation Work?
In mediation, both parties bring their attorneys before the mediator (an independent third party, either in person or virtually). From there, each spouse and their attorney are placed in different rooms by the mediator (or breakout rooms if meeting virtually).
The mediator moves between the rooms and relays each party’s terms, noting who has agreed to what provision. If the parties refuse to cooperate, mediation can be ended and the issues will proceed to court in front of a judge, who will make their own determination.
It is possible that what the judge decides will not fall within the scope of what either party wants. Often, the thought of a judge deciding in such a way on these sensitive issues encourages cooperation between the parties. Mediation is often the best path to agreeable terms for both parties.
What if I want mediation, but my spouse doesn’t?
If one party wants mediation, their attorneys can file a Motion to Compel Mediation with the proper court, if the court doesn’t mandate it already. With that motion, the court can force the other party to agree to mediation.
Some courts have encouraged mediation for decades. When done properly, mediation can result in a more fair and collaborative result to the divorce process. This process encourages both parties to work together, with family law as the backup plan if the parties refuse to play nice.
Mediation vs. Arbitration
Many times, mediation and arbitration are used interchangeably. The two terms describe similar processes but carry significant differences.
Mediation Overview
Mediation is a voluntary, out-of-court settlement process to resolve disagreements between two parties. In mediation, the parties agree to and negotiate on the specific terms of the Mediation Settlement Agreement (MSA).
For example, if two spouses are negotiating the divorce, they would have to negotiate (through the mediator, who encourages cooperation and compromise) the details of the divorce agreement, including the custody of the children as well as the division of marital property.
Mediation, when effective, results in an agreement built by both parties where both parties agree to compromise for their own benefit, and the benefit of their children and property.
Arbitration Overview
Arbitration, on the other hand, is generally involuntary. Arbitration is an out-of-court proceeding that essentially functions as a trial without an official judge.
While not common in everyday family law, arbitration gets its power from the arbitration agreement, where both parties agree to abide by the ruling of the arbitrator. Think of arbitration as a specialized unofficial court that you agree to give power to, versus a court that has power over your divorce whether you want it to or not.
Where mediation encourages cooperation and a collaborative, holistic approach to the divorce process, arbitration encourages both parties to submit to the decision of a specialized decision-maker.
