The Court Has Ordered That We Try to Mediate. What is Mediation?

Mediation is a form of alternative dispute resolution that is designed to assist parties in resolving their case outside of the courtroom.  Mediation has been ordered on a regular basis in civil cases for many years and in the last decade has gained a lot of traction in Kentucky and Illinois in family law cases.  It has become so popular with judges that many areas have actually made it a requirement that mediation be attempted before a case is scheduled for trial, especially in child custody cases.  The idea is at least twofold.  First, if more cases settle, it reduces the court's workload and lightens the docket making it easier to get other cases to trial.  Second, and again especially in child custody cases, when cases settle, it helps to reduce some of the animosity between the parties.  Courts are, however, prohibited from ordering mediation in a cases in which there has been domestic violence.

Mediation is conducted with the help of a trained mediator.  Generally, these mediators are court approved and have undergone a minimum of forty hours of training along with continuing mediation education.  In some states, there is no requirement that the mediator actually be a licensed attorney as well.  The mediator is a neutral party whose job is to act as a negotiator and facilitator to try to bring the parties together to an agreement.  The mediation may take place with or without the parties' attorneys present, but, if the attorneys are not present, the parties will have an opportunity to review any agreements with their attorney before the agreement is submitted to court.  The mediation may take place with all parties in the same room or the parties may be separated and the mediator with go back and forth between the two rooms (often called "shuttle" mediation).

Even though mediation is often court ordered, there is no requirement that the parties actually settle their case at mediation.  Generally, parties are under two obligations.  First, they must show up if court ordered, failure to do that could result in contempt sanctions from the court.  Second, the parties are required to mediate in good faith, meaning that they have to make a legitimate effort to resolve their conflict and at least hear out the other party.  "Mediating in good faith" is one of those phrases that is hard to define, but I know it when I see it.  I was once involved in a mediation where one party completely flipped out and we had to call the police to get her to leave the office.  That was definitely not good faith.

Once the mediation is completed the mediator reports to the court whether the parties met their two obligations, whether an agreement was reached and what the mediator's fees were.  If an agreement is reached it is submitted to the court, usually separately by the parties attorneys.  Once submitted by the attorneys, the court will review it and if it is found to be equitable, the court will adopt the agreement as a court order.

If you are ordered to mediation, it is important you discuss it with your family law attorney.  Make sure your attorney is comfortable with the process and fully explains what to expect.  If you have more questions, please visit the Alford Law Office.

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