What happens during mediation? Why should I go to mediation in my case? What if we can’t reach an agreement on ALL of the issues at mediation? Can I change my mind after I have signed an agreement at mediation?  What happens during mediation?

DISCLAIMER: The answers below are the opinion of Patricia L. McKinnon, Esq., and should not be considered as “legal advice”. Each person’s legal case is unique, with its own set of facts and applicable law. You should consult an attorney of your own choosing before acting on any of the information below.

What happes during mediation?  What if we can’t reach an agreement on All of the issues at mediation?

     If there are outstanding issues that you and the other side cannot resolve, then the Court may order to both you, and the other side in your case, to participate in a process called “mediation”. An Order forcing the parties attend mediation can be requested by you, your attorney, the opposing attorney, or even by the Court.

     If the Court issues an Order requiring you to attend mediation, then you must show up at the scheduled mediation date. If you know you are not available on the scheduled date, then you need to let your attorney know as soon as possible. If you do not have an attorney, then contact the mediator directly.

     During mediation, a third party, called a “mediator” tries to get you, and the other side, to work together to reach an agreement on the remaining issues in your case. The mediator is a neutral person. He or she may be an attorney, or may not be an attorney. In either case, the mediator should have previous training on how to be a mediator and will probably have been a mediator in another case before participating in your mediation.

     Typically, a mediation will occur at the mediator’s office. You, and the other side, may be together in one room during the entire mediation, or you may be in separate rooms for some, or all, of the mediation. The mediator will decide when, and if, to separate you and the other side.

     Your attorney will attend mediation with you unless the attorneys for both sides agree not to attend mediation.

     What you say during a mediation to the mediator is completely confidential. The mediator cannot be forced to reveal what you said, or what the other said, at a later date, even if the mediator is subpoenaed to attend a Court hearing. In fact, the only thing the Court will know about your mediation is whether or not you and other side attended mediation, and whether or not you reached an agreement.

     If you reach an agreement during the mediation, then that agreement will be submitted to the Court for the Court’s approval and issued as an “Order”. It sometimes happens that you reach a partial agreement during mediation, on some, but not all, of the issues. If that happens, the mediator may ask you to return to the mediator’s office at a later date for another mediation session to see if you can agree on the remaining issues after you have had time to think about your case. Or, you may attend a future Court hearing on the remaining issues left after mediation.

     Mediators are usually paid by both sides in a case, though who pays the mediator’s fees can be something the parties negotiate during a mediation. Most mediators require a deposit of some amount prior to the actual mediation date. In addition, the mediator will want you to sign some sort of mediation agreement that outlines the rules for your mediation.

Why should I go to mediation?

     If the Court orders you to attend mediation, and you fail to appear, then you may face penalties from the Court. Some Courts will not let a scheduled hearing occur until the parties have participated in a mediation. By not attending mediation, your Court date may be rescheduled to a later date and time, which will further delay your case.

     Mediation teaches the parties in a case to try and work together to resolve their issues. It is often a first step in putting aside the hostilities in a case and trying to reach a common agreement on the issues. This is particularly important if you and the other side have children from your marriage or relationship. It is often the children who are hurt the most when the parents continue to fight about every issue in a case.

     A good mediation will require both parties to compromise. You may leave the mediation feeling like you didn’t quite get what you wanted. However, by finishing your case at mediation, then you may have saved yourself additional attorney fees, and additional delay in completing your case.

     You may be surprised to learn that most parties tend to follow mediated agreements better than Court Orders. It may be that by being part of the process, a party is more willing to follow an Order than if the Order is simply issued by the judge after a hearing.

     Also, at a mediation, you can include items in the mediation agreement that a Court would not consider important, such as visitation with pets, who gets minor items of property, or other changes to the normal rules in a case.

     Sometimes the mediator can come up with a solution that neither you nor the other side considered in order to resolve the outstanding issues.

Can I change my mind after I have signed an agreement at mediation?

     Probably not.

     Unlike buying a house, or a car, once you sign an agreement at mediation – you are bound by your signature. It is likely that a Court will take your signature on the mediation agreements as legally binding, whether or not you thought you could change your mind at a later date. It is very important that you ask questions about your mediation agreement BEFORE you sign it so that you preserver your rights under the agreement terms.

     If you believe you signed the mediation agreement under duress, fraud, or coercion, then you should speak to an attorney about your options in your case. It is important that you speak to an attorney as quickly as possible after the mediation in order to best preserve your legal rights.