When can you mediate?
In the divorce or family law process, mediation can happen at any time during the case. In New Hampshire, there is no requirement that you appear in court in order to become divorced or resolve a parenting dispute. If the parties are able to reach an agreement, those agreements can be filed with the court and then approved by the Judge. For this reason, many families choose to start the meditation process prior to filing anything with the court. You can also use mediation after a case has been filed to try and reach agreement before a hearing or to limit the issues you are asking a Judge to decide. One of the benefits of mediation is that it can be tailored to meet your individual case and needs.
We don’t even know what we need to decide. Can we still mediate?
In mediation, we will walk you step by step through all the issues you need to decide. We can help you determine how to value assets that are at issue and talk you through what decisions need to be made for parenting and support. We will guide you through the forms and help draft the necessary paperwork as part of the mediation process.
Is an agreement from mediation still enforceable?
If you are able to reach an agreement in mediation, that agreement is then drafted into the necessary court documents. For a divorce, agreements on assets and debts are memorialized in a document called the final decree, parenting agreements are put in a parenting plan, and support is set forth in the Uniform Support Order and Alimony Support Order. As the mediator we can draft these pleadings for you to be filed with the court. The court then reviews these pleadings and in most cases simply approves them. Once the Judge signs them, they are just as enforceable as if the Judge had made the decisions in court.
What happens if we can’t agree?
Mediation does not need to be all or nothing. In most cases, the parties are able to reach an agreement on all the issues related to their case. In some instances though, there may be an issue that remains unresolved. In that case, you can have a partial agreement and simply ask the court to decide the issues that remain. This may mean needing a shorter hearing and more certainty as to the issues you could resolve. If mediation is not successful at all, you are always able to submit the issue to the court for resolution. The mediation process is confidential, so any offers or settlement discussions cannot be used in court. This leaves the parties able to freely discuss settlement options without worrying it will be used against them. Even where settlement is not reached, mediation itself may give the parties a better understanding of each other’s perspective and feelings on the issue in dispute.
Is my case too complicated for mediation?
There is no case that is too complicated for mediation. One of the biggest complaints about the judicial system is that there isn’t enough time in a hearing to fully explore all the issues. People feel rushed to try and present a complicated issue in a limited period of time. Sometimes lengthy trials may be spread out over a period of months, with a Judge only hearing one small part at a time. In mediation, there is no time limit to how long you can spend and there is no limit as to what professionals can be brought into the process. If it is a complicated financial issue, there may be valuation experts, accountants, financial advisors, and tax experts involved in mediation. If it is a complicated parenting issue there may be therapists, child life specialists, doctors and school advocates involved. Mediation is about reaching a solution and it is up to the parties to determine who can assist them in doing that. We feel that mediation is even more necessary in the complicated matters. In these cases, the ramification of a “wrong” decision by a Judge can also be more damaging.
How will I know if what the other party is offering is “fair”?
What is fair and what works for each family is different depending on the case. Mediation lets you decide if a solution works for you and oftentimes lets parties solve problems in a way the court could not. However, divorce and parenting are legal matters, and parties are often concerned about whether what they are agreeing to is legally equitable. We encourage all of our mediation clients to talk with an attorney and have them review the agreement before they sign it. For many clients, it is helpful to speak with an attorney prior to mediation to learn about their legal rights and have their questions answered. The mediator can talk with you about the law in general and can explain the process, but they cannot be an advocate for either party. We can provide legal information but we cannot offer legal advice.
Do I need a lawyer?
You do not need to have a lawyer with you at mediation and many couples choose mediation because they specifically do not want to have attorneys involved in the process. We always recommend that the parties meet with an attorney to review the agreements they reach, but ultimately that decision is up to you. In some cases though, having counsel involved is essential to being able to ultimately reach an agreement. If either party feels like they need help making a decision in the process, having counsel with them at mediation can keep the process moving forward. Sometimes the issues themselves are complicated, and having someone to advise on the best resolution is critical. In the end the decision on if and how lawyers are used is completely up to you.
What if our dispute is not a “legal” one?
Although a large part of our mediation practice is divorce, we also help mediate issues that are not part of a legal dispute. We have worked with couples who are staying together to come to agreements on financial issues, we have worked with families struggling with addiction to agree on treatment. We have helped divorced couples reach agreements on significant others and even helped families determine how to address issues surrounding a disabled child. Mediation is about finding creative, sustainable solutions and it can be applied to all kinds of different issues.
How long does it take?
We get asked this question all the time, and the only answer we can give is “it depends.” The only people who can resolve the issues in mediation are the parties. How long that takes depends on the parties themselves and the complexity of the issue itself. That said, a typical divorce case with minor children will take between three to five sessions. A simpler case with just asset division may be able to be done in less. Coming to the sessions in good faith, being ready to discuss the issues and providing the needed financial information, will help keep the process moving. It is not uncommon in a divorce that one party will want to move faster than the other. This is part of what the mediator will help the parties work through.
I think we agree on almost everything. Do we still need mediation?
Clients will often ask this question and in cases where this is accurate, you may not need mediation. Instead you may just need an attorney to help you draft the paperwork. In most cases though, the devil is in the details. Although you may agree as to the overall big picture, you may have different ideas about how those ideas will be executed. Mediation can help you work through all the different issues and make sure that you are both in agreement on each aspect. For example, you may agree on splitting retirement funds but you may not have discussed what date will be used for valuation, who will complete the paperwork, who will pay for it to be done, or if it includes gains and losses and so on. In parenting, you may agree to alternate weekends, but you may not be clear on when a weekend begins and ends, or if those weekends can be added to vacation time and what happens when one is “missed.” By discussing these details in mediation, you can both address these issues together and hopefully avoid conflict in the future.
We do not get along. Can we still do mediation?
Mediation is successfully used in all kinds of disputes and with all levels of discord. Although mediation is often thought of as an amicable process, where both parties discuss their views and work together, this is not always the case. In the more contentious matters, we may just need to change what the process looks like to make it successful. In past cases, we have worked with the parties in separate rooms and have acted as the go-between with information. We have had cases where the parties each arrived and left at different times to avoid contact and we have even worked with parties when restraining orders were in place.