Nearly all unsettled divorce disputes are sent to mediation by Michigan judges. The courts often require mediation before trial because the process can be highly effective.
1. The choice of mediator is normally agreed on between attorneys. Rarely does a court assign a mediator without input from counsel. Lawyers chose a mediator based upon several factors--familiarity, cost, wait times, prior successes, personality and process.
2. Mediation is ordered by the court. Once lawyers agree, the mediator's name is included in a court order for mediation. Unless the case settles, the judge will expect the parties to participate in mediation.
3. It may take a while to get in. Good mediators are in demand, but often worth the wait.
4. Mediator cost is split. Absent unusual circumstances, courts will usually split the cost of mediation between the parties. Mediators charge an hourly rate depending on thier skill and locality. Mediators will send out a letter confirming the date and time of mediation. In order to hold that date, a deposit is usually required.
5. The parties are rarely in the same room during mediation. Mediators design their own process but few have the parties and counsel in the same room. The mediator will go between rooms, carrying offers, questions and messages back and forth. Mediators will often take the attorneys and/or financial experts aside but will not meet with the parties together or alone absent unusual circumstances. Some call this "shuttle diplomacy." There may be a group meeting at the end to record a settlement.
6. Mediation is expensive. Both parties' attorneys are present with their clients at mediation. Financial experts for both sides may also attend. There is a significant amount of preparation required for both counsel, their experts and the mediator before the process can begin. The combined hourly rate of mediation can be very high, but trials are much more costly.
7. Mediation can be a long process. Depending on the complexity of the case and/or the willingness of parties to compromise, the first divorce mediation can take up to a full day. Often mediation can take more than one session, with weeks in between each if schedules are tight or additional information is needed.
8. Mediation can end with a signed or recorded settlement agreement. Often mediators or counsel will draft a settlement document to be signed by the parties or record terms at the end of mediation. This is meant to expedite the process and avoid "buyer's remorse." The divorce will not be official until the judge approves and signs a judgment or decree, but a signed settlement agreement is almost always binding on the parties, even if one changes his or her mind later.
9. If there is not a settlement, the court will not know specific offers or mediation discussions, only that the case did not resolve. Because parties are encouraged to make their best offer of compromise, the court will not know what the stance of each side was at the end of mediation. This is to encourage folks to open up without fear that their last/best offer becomes a starting point for the court.
10. Mediation is almost always worth it. Many client go into mediation with the expectation their case will never resolve, and they're doomed to proceed to trial. It's imperitive to keep an open mind. Horrific or exagerated points or views expressed in the opponent's mediation brief may simply be posturing or playing to the client's needs. Mediation can break down those walls.
Mediation is an important (and inevitable) step in the divorce process. At best, the case is resolved and the parties move on. At worst, the mediation process sorts out the issues and provides a dress rehearsal for trial.
Keep in mind that mediation is far more efficient and humane than trial.
