A BRIEF DESCRIPTION
Since judges have the authority to order most types of cases to mediation prior to trial, your
case will likely be referred to mediation in an attempt to settle your issues. The purpose is to open
up lines of communication and explore all possibilities of settlement in order to resolve the dispute
and, thus, relieve the overcrowded court dockets.
Mediation is defined as a use of a neutral and impartial third party to help resolve a dispute.
The mediation conference is informal, confidential and privileged. The mediator has no decision-
making authority (i.e., any agreement reached will be by mutual consent of the parties). The
mediator helps the parties analyze the issues and generate alternatives for a negotiated settlement.
Mediation is essentially a communications process with the mediator serving as manager of
that process. The role of the parties is to recognize that people in a dispute can come to the table to
negotiate and in good faith try to resolve their differences. Familiarity with the case, openness and
flexibility are all that is required.
While the presence of legal counsel is not required, lawyers, in fact, usually attend the
court-ordered mediation conference. Counsel should be prepared to discuss the facts and legal issues
involved in the case and to generally help the parties evaluate the case. The ultimate decision-
making authority of whether or not to settle the case rests with the parties and with the advice of
counsel. The mediation conference is held on neutral ground, such as a mediator’s office or the
Family Mediation Unit. Mediation of family law cases lasts on the average from two to four hours.
WHAT IS MEDIATION?
Mediation is a confidential procedure designed to assist individuals in reaching an agreement
between themselves, privately, confidentially and informally. Mediation is for individuals who want
to settle disputes without going to court. It employs the skills of a neutral and impartial third party,
called a Mediator, who assists the individuals in making their own decisions by providing necessary
information, clarifying issues, helping them explore alternative solutions, and suggesting possible
GOALS OF MEDIATION
To assist parties in reaching an acceptable agreement with the full exploration of all
To avoid the necessity of a court imposed decision.
To assist the parties in understanding the terms and future impact of their agreement.
To reduce anxiety and the negative effects of having to be in court.
To prepare the parties to anticipate, work through and resolve disagreements that
Provides the parties with the tools to structure an agreement that is in their best
Facilitates the exchange of information, ideas, and alternatives for settlement
between the parties.
Provides the opportunity for a less expensive and time consuming conclusion than a
Provides an opportunity for concern and cooperation between the parties.
Minimizes the potentially traumatic emotional and psychological effects of the
Minimizes competition between the parties, which competition can add to pain and
To ensure you have control over the terms of your family law matter, instead of
having a Court to decide them.
HOW MEDIATION WORKS
The process of mediation begins either by an order of Court or by agreement of the parties.
The Mediator, as a neutral and objective participant, plays an active role in the mediation process by
assisting all individuals affected by the outcome and their attorneys in reaching their own settlement.
The purpose of the Mediator is to help identify issues, develop bargaining proposals and
conduct negotiations with the goal in mind of coming to a settlement that is best suited to each
individual's needs. The Mediator clarifies and organizes details, prompts discussion and cooperative
communication as well as manages conflict.
The Mediator DOES NOT make any decisions for the parties but facilitates the parties' own
decision-making processes. After agreement has been reached, the Mediator will draft a
memorandum of understanding which will be reviewed and approved by the parties and their
THE ROLE OF THE ATTORNEY
Mediation is not intended to dispense with each party having an attorney experienced in any
one particular area of law. The Mediator is not authorized to give either party legal advice.
The Mediator's role is neutral and not a substitute for independent legal advice. The
Mediator does not represent either party, but focuses on helping the parties reach their own
agreement. Each party is urged to seek independent legal counsel. While the decisions reached in
mediation are made by the parties, it is important that they should be informed decisions.
Attorneys may attend the mediation. The parties shall at all times be permitted to
communicate with counsel. If both parties are aware of their respective legal rights, and have been
fully informed by their own attorneys, the mediation process can be much more beneficial to the
Upon completion of the mediation, the Mediator will submit the memorandum of agreement
to the parties' attorneys. If necessary, the attorneys will draft a settlement agreement from the terms
of the memorandum, for filing with the Court.
COSTS OF MEDIATION
The Mediator's fee is usually determined on an hourly basis. Both parties are often ordered to
share in the expenses. When mediation is court-ordered, the fee and person responsible for payment
will be set by the Court. Mediation may be available through the court at minimal costs in some
circuits. Mediation frequently is less expensive, both financially and emotionally than traditional