What is mediation?
Mediation is an opportunity for people to talk together with the help of a neutral mediator and make their own decisions on what to do next.
Mediation is private and confidential. There is no agreement unless is is acceptable to both of you.
When is the best time to start mediating?
As soon as you can. In an ongoing unresolved conflict or situation, communication often breaks down, tempers flare, and there are a lot of misunderstandings that further complicate the situation.
Often, people stop talking to each other directly. There is no communication or they rely on family, friends, or their attorneys to pass along messages. Anyone who has ever played the game of ‘telephone’ as a child knows that inevitably the last person does not really know what the first person said when the message is passed on by people in the middle.
So, in addition to intense feelings and negative thoughts, there are a lot of misunderstandings. Go to mediation as soon as you can, before communication breaks down further and before friends and family choose sides.
In many cases, people do not have any other opportunity to talk directly or to begin talking to each other again. You can begin talking about what needs to be decided or what you think you can talk about. You might surprise yourselves at what you ARE able to do.
If you can make the decisions together in mediation, you control what will happen to you in this situation.
Is mediation ever inappropriate?
Yes. If a person feels unsafe, is afraid to speak up or is fearful that s/he or the children will be harmed later if s/he speaks up in mediation, mediation may not be appropriate.
Talk to your attorney and your mediator. See "I'm Afraid or Worried" for more information.
I don’t think mediation will work for us.
Most people DON’T think mediation will work for them. They are skeptical about trying to talk things out one more time. Most don’t trust the other person. They think, “If we were going to be able to talk things out, we would have DONE that already. We’re past that. Communication is worse than ever now. It’s hopeless.”
Skepticism and doubt are common initially. But they don’t predict what will happen in mediation since over 70% of the people who mediate reach agreement on all or most of the issues. Most of them are surprised they can talk things out. And relieved.
How long does mediation take?
It depends. If you have a couple of matters to resolve, you may need just one two-hour mediation session. If you are using mediation to make decisions on a range of matters, and if you need to gather more information, it might take from two to six sessions. It’s up to you.
You decide what you’ll talk about, when the session is over, whether to come back. In mediation, what happens is up to you.
What does the mediator do?
The mediator helps people have the kind of conversation they would like to have but haven’t been able to have on their own. The mediator does NOT make decisions, give you advice, or make recommendations to a court or any other authority. The mediator gives each person a chance to tell their perspective, share their concerns, be heard, and ask questions. You two will decide what to do next.
What kinds of issues can we discuss and decide in mediation?
You can decide upon anything you are both willing to discuss. The only thing you cannot talk about is whether domestic abuse occurred.
Do I need an attorney?
It is recommended that you get an attorney, especially if you have minor children, own anything together or have debts.
Why are attorneys recommended?
You know more about your situation than anybody else. On a personal level, you are the experts. However, you are involved in a legal case in the court system. Whether or not you know or understand the law, it will impact your situation. It will affect you.
It is important for you to know the range of what the court might decide on the different issues in your situation and why. It is important for you to know the financial or tax ramifications or consequences of all of your decisions. It is important for you to know any legal consequences to your decisions, so you are not surprised or disappointed later.
If we have attorneys, do they come to mediation?
They are welcome, but most attorneys do not come to mediation. Most choose to meet with you before the first session and in between any later sessions to advise you and prepare you for mediation, so you are informed and ready.
If you want your attorney to be there, let your mediator know. Let the other party know so they can decide whether they also want their attorney with them in mediation.
How do I choose an attorney?
Your attorney will be your mentor during an important time in your life. It is essential that you choose someone who shares your goals, who you feel comfortable expressing yourself with, who you trust and get along with.
If you want mediation to work in your case, it is important that you have an attorney who will support you and help you prepare for mediation.
Attorneys have two different roles: as an advisor and as an advocate. In mediation, you want to benefit from your attorney's advice. If you go to trial, you want an attorney who will advocate for you.
Ask your friends, family and other people you respect about who they would recommend, and why.
Call a few attorneys. Ask them:
- Are you supportive of your clients mediating their divorce or custody cases?
- How do you help them prepare? (Before mediation? In-between sessions? What do you do?)
- How many (or what percentage) of your clients who mediate actually reach agreements in mediation?
- Why do you think that is?
- How many (or what percentage) of your clients end up in a trial?
- Why do you think that is?
- Ethically, attorneys are supposed to work for the best interest of their clients. What does that mean to you?
- Ask any other questions that are important to you.
If we are involved in a court case, can a mediated agreement become part of the court’s decision?
Yes. Once you have a final agreement you are both willing to sign, the mediator or one of your attorneys will type it up, you will both sign it, and it will be presented to a judge. The judge will read your agreement and will usually accept it. When the judge authorizes your agreement, it becomes the court’s decision. If one of you breaks the agreement, you can discuss what to do or return to mediation or you can return to court.
What if we do not have minor children, do not own property together and do not have joint debts?
If you do not have minor children, do not own property together, and do not have joint debts, it may be possible for you to handle your case without an attorney. Go to the following for more information:
What are the advantages of mediation?
- Generally high success rate:
- Over 70% of the people reach agreement on some or all issues when mediating divorce or custody cases in this judicial district (the Sixth Judicial District of Iowa).
- Better results: You make the decisions.
- In mediation you can express all your opinions about the issues and what you want.
- You have more control over the outcome – there is only agreement if it is acceptable to both of you.
- Faster, less time-consuming.
- You don’t have to wait for a trial date.
- If you reach an agreement that you both sign, it will be presented to a judge who will read it and can adopt it as the court’s decision.
- You don’t sign the agreement in mediation. You are encouraged to think it over, discuss it with family and friends and your attorney first before signing.
- Often, after talking with others, people come back to mediation to make changes before reaching a final agreement acceptable to both.
- Mediation may be less expensive, especially if you don’t need to go to court.
- If you reach agreement on some issues and go to court for decisions on the rest, your costs for going to court will be probably be lower than if the court made all your decisions.
- Mediation may be less emotionally stressful than going to court.
- You know best what will work for you and what will make a difference in your situation.
- Mediation provides an opportunity to talk together - sometimes there are no other opportunities
- Mediation can result in fewer court hearings in the future.
These advantages are based on research and on what we have observed statistically and anecdotally in this judicial district.