Mediation is important. So is settlement through other means. In fact, mediation is so important that, in most cases, the Judge or Magistrate who is managing a divorce, post-divorce or other family law case will require mediation. The orders of the Court generally say something along the lines of "Mediation is required. You don't get to come to Court and have a Judge or Magistrate resolve your case unless you mediate first." Well, they don't say exactly that, but they have that effect, and for good reason.
That "good reason" is that, in most cases, mediation results in a settlement.
But, even prior to mediation, many divorce, post-divorce custody and other family law cases with attorneys settle simply based on informal discussions or what is known as a "four-way meeting," which is a meeting of both parties and their attorneys. Often, attorneys will suggest a "four-way" at the very start of a case, because they know such meetings often result in settlement.
Some parties go to mediation even before they have filed a divorce or allocation of parental responsibilities case (formerly called a custody case). This is a good idea and may help the parties either come to a complete settlement or reduce the number of issues about which they disagree.
In most cases in which both parties have attorneys, the lawyers accompany their clients to mediation. Sometimes, this is called "attorney assisted mediation." In some cases, the clients try to save on the legal fees by going to mediation without their attorneys. They also may choose to go without attorneys, but have the attorneys available "on call" by telephone, to answer questions that may come up during the mediation. The client will be billed only for the time actually spent on the telephone with the attorney, not the entire time that the mediation takes.
Generally, the end result of mediation, in terms of a written document, is called a "Memorandum of Understanding." This document is prepared by the mediator and contains the agreements of the parties on all of the issues upon which the parties reached agreement. This Memorandum of Understanding is utilized by the attorneys, or by the parties if there are no attorneys, in drafting the final document of agreement, called a Separation Agreement.
By Doris Truhlar