Divorce Mediation

Q.: What is mediation?

A.: A neutral third party, the mediator, uses a structured process to help parties resolve their differences. Unlike a judge or arbitrator, the mediator does not decide how the dispute should be resolved. The parties determine the terms of their settlement agreement.

The mediator facilitates the mediation process by first asking each party to present his or her view of the issues. Then, the mediator uses guided discussion to help the parties resolve the problems and design their own agreement.

There are a number of different mediation models that divorce mediators use, but they all share some common characteristics.

  • The mediator provides a safe and comfortable atmosphere for sharing ideas and will generally ask the parties to agree to some basic ground rules during the discussion (e.g., only one person speaks at a time, no name calling or shouting).
  • Each party is given a full opportunity to share his or her perspectives on the situation. The mediator then summarizes the information shared by each party and helps the parties define the issues.
  • The mediator encourages the parties to generate possible options for resolving their dispute and to select a mutually agreeable solution. If the parties resolve some or all issues, the mediator prepares a written memorandum of agreement.
  • One or more mediation sessions may be needed depending on the number and complexity of the issues.

Q.: What issues can be mediated?

A.: All issues in a divorce—including parenting schedules, parenting responsibilities, child support, spousal support, property division and other financial issues—can be resolved through mediation. On occasion, parties who are referred to mediation have had problems with domestic violence in their relationship. Mediators do not mediate the issue of domestic violence itself. If you are a victim of domestic violence, express any concerns you have about safety to your attorney, the hearing officer, and your assigned mediator. Advise the mediator if you feel you will not be able to adequately express your opinions to or negotiate with the other party. Mediation is voluntary. You always have the option of withdrawing from mediation if your concerns cannot be addressed.

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What role do attorneys play in divorce mediation?

A.: Attorneys are not replaced by mediation. The mediator, a neutral facilitator, will not give legal or financial advice. The mediator will recommend that the parties consult their own attorneys about these matters. Attorneys help their clients understand the law and make informed decisions in mediation. Parties are encouraged to consult with their attorneys before or after mediation sessions and to review the mediated agreement with their attorneys before signing. Attorneys may attend and participate in mediation sessions if both parties agree. When an agreement is reached in mediation, the attorneys will incorporate the agreement into a Separation Agreement or Divorce Decree that is presented to the court.

Q.: What about confidentiality?

A.: Everything said during a mediation session is confidential. Neither the mediator nor the mediator's notes can be subpoenaed to court. However, by law, mediators are required to report new allegations of child abuse, child neglect or commission of a felony.

Q.: What if no agreement is reached?

A.: Mediation does not always result in an agreement, and unresolved issues may be settled in a court hearing.

Q.: Why mediate?

A.: Mediation is a process that gives the parties the opportunity to resolve issues for their children and themselves rather than have a judge decide for them. When parties design their own solutions to their own problems, they are more likely to be satisfied with the agreement and to follow it.

Successful mediation often reduces the hostility that may go with a court proceeding. Reduction in conflict between parents is beneficial to both parents and their children. Also, a mediated parenting agreement eliminates the need for a trial over issues concerning children, thus avoiding a negative experience that can be emotionally damaging for children.

Although there is usually a fee for mediation, a successful mediation is generally less expensive than a contested trial. Successful mediation will often reduce attorney fees and court costs and may reduce expenses for appraisals, accounting services, expert witnesses and other expenses that are normally part of adversarial court proceedings.

Q.: Where can I get more information about divorce mediation?

A.: Further information can be found by entering "divorce mediation" in the search box of the Ohio State Bar Association's Web site at http://www.ohiobar.org. Also, the Ohio Commission on Dispute Resolution and Conflict Management publishes a Consumer Guide to Selecting a Mediator that can be accessed through the Commission's Web site at http://www.state.oh.us/cdr/ or through http://www.ohiobar.org/links/.

The information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.

 
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