Mediation is a settlement conference between you and your opposing party, with your respective attorneys. The mediator is a neutral person who attempts to get the case settled. Most family law mediators are practicing family law attorneys or former family law judges. Mediators are not the attorney for either (or both) of the parties, however, and their role is strictly to facilitate a settlement.

How does Mediation Work?

Most mediations are conducted live in an office environment, either at the mediator’s office or at one of the attorneys’ offices. Many mediations are also conducted via video conferencing, such as by Zoom.

The key point is that in the vast majority of family law mediations, the parties are not in the same room. You don’t have to worry about being present in the same room with the other party, which in many cases would be counterproductive.

The mediator shuttles back and forth between the two rooms, getting offers and requesting information to understand the disputed issues. Ideally, the issues become narrowed down as the mediator works in each room, identifying common ground and areas that can be negotiated.

Much of the time, each party is alone with his or her attorney while the mediator is in the other room. This is a good time to work on next offers and requests, other aspects of the case, and preparing for the remainder of the case if it doesn’t settle.

The goal of mediation is to obtain the other party’s best offer at the end of the mediation, and to then compare that offer with your court option, and to make a decision to settle or not based on those factors. To that end, any offers made should not only be designed with your goals in mind, but also made with the objective of moving the other side in your direction.

Mediated Settlement Agreement

The goal of the mediation is a Mediated Settlement Agreement, or “MSA.” The MSA is a binding, irrevocable agreement once it is signed by all parties and the mediator. You should never sign an MSA unless your intention is to settle the case, because there is no going back or changing the terms once it is finalized. Indeed, all that is left to do after the MSA is signed is to draft the necessary final orders and other transactional documents (for real estate or retirement accounts, for instance), and get them signed by the court and otherwise processed. When an MSA is signed, unless otherwise agreed, all claims and disputed issues between the parties (as of that date) are resolved.

Getting a signed MSA is the mediator’s main objective.

The MSA contains two parts: the standard language containing required disclosures and the specific terms of the agreement. The terms of settlement in family law cases typically include child custody and support issues, property issues, name changes, agreed orders regarding the conduct of the parties, and anything else that is negotiated and agreed upon.

Is Mediation Worth It?

In most cases, yes. Mediation is substantially cheaper than taking a case to trial and is a unique opportunity for all parties involved to focus on the issues over the course of four to eight hours. Even if the case only partially settles, narrowing the remaining issues can save the parties and court a lot of time and money in the long run.

Most courts also require (or at least strongly suggest) mediation prior to having a final trial. So you may not have a choice in the matter.

Most courts also require (or at least strongly suggest) mediation prior to having a final trial. So you may not have a choice in the matter.

In some cases, however, there is one issue that is “binary,” or zero-sum – where there can only be one “winner” and one “loser.” For instance, if one party wants to move with the child out of state and the other does not want the child to move, the case may be impossible to settle and will require the judge to resolve that issue at trial.

Do I have to Settle?

No. Not participating or walking out before the mediator declares an impasse, however, could be introduced as evidence at trial of your bad faith.

My advice is to use good faith and try. Ultimately, you must make a rational decision comparing the mediation offer with your likely outcome at trial, while factoring in the time and money necessary to bring the case to trial.

How Should I Best Plan for Mediation?
  1. Have relevant financial documents and other evidence ready to help the mediator explain your position to the other side.
  2. We will make sure that we’ve discussed your goals for settlement and fleshed out the specifics before mediation, with the understanding that things change once the mediation starts.
  3. Be patient. It is a slow and sometimes frustrating process.
  4. Focus on responding to the other side’s offer, rather than reacting to it, no matter how offensive or upsetting it may be.
What happens if the case settles?

The MSA is signed, filed with the court, and the attorneys draw up the final orders and other documents. All court dates are canceled, assuming the settlement was for all issues.

What if it doesn’t settle?

The case carries on. Remember that all cases continue until they are settled, ruled upon at trial, or dismissed by the parties or the court. A decision not to settle should be weighed against the risks and costs of continuing on. In some cases, it makes no sense to keep pushing a case that can’t obtain a meaningfully better resolution than the final settlement offer. The Law of Diminishing Returns tells us that pursuing subjects past the point of usefulness can end up costing you more in the long run. As your attorney, one of my most important jobs is helping you to make your best decision in this regard.

That said, if the other side’s final offer is completely unrealistic, going to Court is often the best option. Remember, even if the case doesn’t settle at mediation, it can settle at any time after.