Questions about Mediation

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Q: So, what is mediation?

A: Mediation is a process in which a neutral party (the mediator) works with the two of you, together, to help you decide what will work best for all involved.

Divorce shouldn’t be a strictly legalistic process, but rather one of negotiation with compassion.

A good mediator will guide you through the process of negotiating the terms of your divorce, and help ensure that each of you feel empowered to make informed decisions: dividing assets & debts, parenting responsibilities, child support, spousal support. They will help you to focus on the real concerns as divorcing spouses and as parents, and assist in finding options, alternatives, and solutions.

In general, it is an attorney’s obligation to try to “win” for his/her client. But divorce is not about winning or losing. It should be about moving forward with your individual lives as best you can.

Q: Why does divorce mediation work?

A: Mediation allows separating and divorcing couples to take control of planning their own lives, and allows them an environment in which to make good decisions about their future. It is especially beneficial for parents who are separating but will need to continue making joint decisions about their children well into the future.

The decision-making process learned in mediation can serve as a model for future communications. Also, mediated settlements have a consistently higher rate of compliance because the husband and wife have created their own agreement.

Q: Do we need to file my case before coming to mediation?

A: While the larger number of mediated family law cases are ones that are already on file with the Courts, there is no requirement that a case be on file before you are able to come to mediation.

Q: Can mediation assist divorced parents address changing circumstances?

A: Absolutely. Parents and children’s needs change. We frequently assist couples (many of whom are new to mediation and did not use mediation in their divorce) to “tune-up” or reconsider parenting or support agreements that once made a great deal of sense, but later require changes to reflect new circumstances.

Q: Do we always meet together? Can we meet separately, either before the mediation, or in separate rooms during the course of the mediation?

A: Ordinarily, there is great power in the dialogue of both parties present in the same room. In fact, this is one of the frustrations of a litigated or courtroom approach to divorce: in adversarial divorce, parties remain relatively isolated from each other and are unable to make known directly their views and to hear their spouse’s or co-parent’s views.

However, most mediators find great opportunities in occasionally breaking during a joint meeting to discuss with both parties individually, the emerging issues and their separate concerns. This is an ordinary and routine (and often, quite powerful) part of the mediation process and does not signify the parties are failing in their efforts.

Of course, where there are safety and security concerns (or where the parties are restrained from direct contact by Court Orders), and most often, when parties have counsel attending with them, mediation can proceed by “shuttle” between rooms.

Q: Is mediation required by Oklahoma courts? Would we have to mediate before a court hearing anyway?

A: Many, although not all, Oklahoma counties do require mediation before any contested court hearing.

Of course, there are great advantages to mediating early in the process, before parties’ positions harden and workable options are foreclosed. Divorcing parties and couples with parenting issues generally are more motivated when they self-refer themselves to mediation as well.

Q: Why Should I Consider Mediation For My Divorce?

A: Mediation allows separating and divorcing couples to take control of planning their own lives, and allows them an environment in which to make good decisions about their future. It is especially beneficial for parents who are separating but will need to continue making joint decisions about their children well into the future. The decision-making process learned in mediation can serve as a model for future communications. Also, mediated settlements have a consistently higher rate of compliance because the husband and wife have created their own agreement.

Q: What Does The Mediator Do?

A: Simply put, a family law mediator is a neutral party specially trained to help couples resolve the issues in their divorce. The mediator facilitates the communication between the parties by making sure each party is given an uninterrupted time to speak, asking a party to restate or explain a point when necessary, and asking questions to make communication clear. The mediator also provides information about the legal system, how issues may be viewed by lawyers or judges, and what alternatives there are for solving issues.

Q: How Long Does Mediation Take?

A: The complexity of the issues and ability of the individuals to be flexible as they negotiate a fair agreement determines the length of the mediation. Every case is different, any depending on the parties, their attorneys, and their respective positions, sometimes an agreement can be reached in the first session (which is typically 2 hours).  For more complex cases, there may be multiple sessions.

Q: Will our Agreement be Enforceable?

A: Once an agreement has been signed, that agreement is enforceable, however usually a judgment based on the agreement is prepared and filed with the court, and is just as enforceable as any other divorce judgment.

Q: Should I See a Lawyer During Mediation?

A: Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent legal advice during the mediation process, and to have their lawyer review the agreement before it is signed. Even when the mediator is a lawyer, he/she cannot give either party legal advice.

Q: What if My Case is Too Complicated for Mediation?

A: No case is too complicated to be settled using mediation. Frequently the parties in mediation consult with outside experts such as accountants, appraisers, financial planners and attorneys during the process.

Q: What Does it Mean When You Say Mediation is Confidential?

A: State law says that no one, not even the two parties, can use what is said in mediation as evidence in court. What happens in mediation is as confidential as settlement negotiations between parties and their lawyers.

Q: What if We Can’t Agree on All Issues?

A: It is fairly rare to agree on all but one or two issues, but even if that is the case, mediation is seldom wasted. An agreement can be prepared on all settled issues, and the parties can either litigate the remaining issues or take further time to think about them and come back to mediation.

Q: We Don’t Get Along Well – How Can We Possibly Mediate?

A: Although many mediating couples are amicable and work well in mediation, there are also many couples who are very emotional about the divorce and don’t think they can negotiate face to face. Part of every qualified mediator’s training is in assisting couples who have high emotions but who still would like to work things out peacefully. People do calm down and become effective mediation participants when they see that the process can work without adding to the high emotional and financial cost of divorce.

Q: How is a military divorce different from a civilian divorce?

A: In one sense, the military divorce is a civilian divorce. Divorces are granted by the State of Oklahoma district court. It is not done through a military court, and the laws of OK govern the process.

The important difference is in how military benefits are managed. The managing of retirement funds can be complicated, and it is important to understand how OK civil rules mesh with military rules. Also, the military extends many benefits to the ex-spouse that continue after divorce. Understanding these will influence the negotiating of the terms of your divorce. Your mediator needs to explain all of these issues so that they are clearly understood.

And of course there are emotional issues to be recognized that differ enormously from those of the civilian population. Privacy is important. Completing the process efficiently is important. Timeliness is important. And understanding the stresses of military duty is essential.