Family Mediation FAQs
- How is mediation different from litigation?
- How do I get started?
- Should I hire an attorney?
- How much does mediation cost?
- Who will succeed in mediation?
- How can it work if my spouse is so much more powerful?
- Will mediation work if there is domestic abuse?
- Can I bring a friend or a support person to the mediation session?
- How do I find out if mediation is right for me?
- How long will mediation take?
- How does the mediation process work?
- How do you divide property?
- How is child support determined?
- How is spousal maintenance/alimony determined?
- Is there a custody arrangement that reduces conflict in the future?
- Is mediation confidential?
- Is a mediated settlement the same as a legal settlement?
- Is it true that if I’ve moved out of the house, I will be considered to have have abandoned my children?
- If I leave everything up to the Judge, will the Judge’s decision be fair?
- Do both parties need to attend each post-divorce mediation session?
- What if the other parent doesn’t want to participate?
Questions with Answers
1. How is mediation different from litigation?
Mediation creates a supportive and constructive environment that promotes communication and balances power differences. All people involved attend mediation at the same time and meet in the same room with the mediator. The mediator works to guide participants to settlement. Conversely, in the adversarial system (litigation), each person has their own attorney who advocates for them and the people might not communicate directly with each other, but through their attorneys. Sometimes a judge ends up deciding the outcome.
2. How do I get started?
We offer divorcing couples a FREE, no obligation, one-hour consultation with the mediator. At the consultation, the mediator will get a sense of your case and answer your questions about divorce and the mediation process.
The consultation is also an opportunity for couples to get a sense of the neutral role of the mediator and what the working sessions will be like.
The mediator will also offer other resources that may be helpful to you both when deciding what to do next. If mediation appeals to both of you, you may schedule a two-hour working session. Sometimes, one or both spouses are not ready to begin mediation.
3. Should I hire an attorney?
It is not necessary for couples who attend mediation to hire an attorney. The choice of whether or not to retain representation is completely up to each participant. Many couples try mediation first and decide later if they want representation. An attorney can be hired at anytime before, during, or after mediation.
4. How much does mediation cost?
The average cost for a mediated divorce is less than $5,000, depending on the complexity of the situation. To put this in perspective, some attorneys will require $5,000 simply for a retainer. When one party initiates the litigation process, the other typically will retain another attorney, incurring an additional set of attorney’s fees. Mediation normally costs about one fifth of what you’d pay in a litigated divorce. For three sessions, and drafting the Memorandum of Agreement of your settlement the total cost would be approximately $2,000 – $3,000. Mediation fees are generally shared by the parties, so that would be $1,500 each.
Fees for neutral experts (such as appraisers) are paid directly by the couple directly to the expert
Once you have finished mediation, you will need legal documents drafted for the court, signed by each of you and filed with the court. For parties who are unrepresented, drafting can be done by a neutral drafting attorney or by a neutral scrivener. Those costs might add approximately $1,500 to $2,500 to the total divorce costs. In some cases, parties may choose to complete online forms through the Minnesota District Court Website. We will discuss what options are available and may be best for your situation.
5. Who will succeed in mediation?
We believe all couples have the potential to be successful at achieving a mediated divorce settlement. We believe that all couples can achieve a more productive and fair process of resolution of their conflicts using EMI’s client-centered framework, which concentrates on assisting all people involved in achieving the best possible outcome through a cooperative approach.
6. How can it work if my spouse is so much more powerful?
There are power differences in all couples. It is our job as mediators to identify those power imbalances and work to make sure both parties are empowered so that a fair resolution can be achieved. Power is very hard to identify. Clients do not know their own power and how it affects the other. Power tends to move from one to the other depending on the issue. Each sees the other as powerful, while seeing themselves as having no power. Equal power is less the issue than how each uses their power. When power is used negatively, it is inherently destructive and the mediator intervenes to change the power to learn what motivates it.
7. Will mediation work if there is domestic abuse?
Erickson Mediation Institute has a thorough screening process for identifying and setting up protocols when domestic abuse is suspected or detected. In domestic abuse cases, when there is a screening protocol, divorce mediation is more appropriate than lawyer-negotiated divorce or litigation. Conflict is significantly decreased in mediated divorces, when compared to litigated or lawyer-negotiated divorce.
8. Can I bring a friend or a support person to the mediation session?
Yes, if everyone agrees that it would be beneficial. If that person can help one of you make concrete decisions or assure that everyone feels safe, it would definitely benefit the settlement process. With that in mind, both sides need to approve having any extra people in the room during a session. Preserving a power balance is critical to maintaining a safe and productive mediation environment, and a support person may provide that during mediation.
9. How do I find out if mediation is right for me?
Divorcing couples can check out mediation with a free, no obligation, one-hour consultation with the mediator. At the consultation, the mediator will get a sense of your case and answer your questions about divorce and the mediation process. If mediation makes appeals to both of you, you may schedule a two-hour working session. In fact, divorcing couples are encouraged by the court to attempt mediation before engaging fully in the judicial process. Sometimes, one or both spouses are not ready to begin mediation. EMI mediators will also offer other resources that may be helpful to them when deciding what to do next.
10. How long will mediation take?
Each Mediation session is schedule for two hours and it usually takes two to five sessions. Three sessions is an average for most divorces. The time in-session depends on the complexity of your case, the level of conflict involved, and other factors. Clients who are cooperative, organized, and well prepared with their paperwork will typically require fewer sessions. During the initial consultation, after getting a basic understanding of your case, the mediator can discuss areas that will affect the length of time and can provide you with an estimate of how many sessions might be needed. Once mediation is completed, it can take approximately 2-8 weeks for your divorce to be finalized with the Court.
11. How does the mediation process work?
The first session is to gather all information, including your marital estate, living expenses after divorce, and preliminary discussions about your future parenting arrangements. This information is the basis for many other decisions made during later sessions, such as property division, child support, spousal support, and more. If you don’t have all the information available during a session, the mediator will create a list of “homework” items for the next session. Each session builds on the information provided by you, and leads towards the many options you have after the mediator has listened to your ideas about settlement, and offered some options you may not have thought of.
12. How do you divide property?
Minnesota law says that your property division should be “equitable.” But what is equitable? Our mediators have the skills and techniques to balance the playing field and make sure each of you understands the value of your marital property. Divorce laws are discretionary when it comes to property settlements.. In other words, courts will accept divorce agreements the two of you make around these subjects as long as those agreements are fair and just for both of you.
13. How is spousal maintenance/alimony determined? Is there a set formula?
No. Alimony (also known as spousal maintenance and spousal support) is discretionary. This means that you can make your own decisions regarding spousal maintenance in mediation, as long as your reasons are logical and fair and can be explained in your divorce documents.
14. How is child support determined?
There are many options regarding the future support of children after divorce. As a starting point, in mediation the mediator will run the Minnesota Child Support Guidelines Calculator for parents, which will give you the amount a court is likely to impose if you can’t agree on another arrangement for financially supporting the children. Some parents choose to follow the guidelines, but other parents may adopt a different arrangement they agree to based upon their children’s needs. When they do this, they deviate from the child support guidelines and need to provide a detailed explanation of the purpose for deviating. In mediation, you can be creative, discussing all options and deciding what will work best for you and your children.
15. Is there a custody arrangement that reduces conflict in the future?
Yes, it is the one the two of you build together. You can end the marriage partnership, but not the parenting relationship. For the benefit of the children, you must see each other and talk with each other in the future. There will be many issues to work through that impact your children that no award of custody can completely cover. It’s better to create a plan that addresses coordination of school schedules, transportation to extra-curricular activities, re-marriage, moving households, travel and so on. It’s better to have a process for ongoing discussions than to try to cover all eventualities in a divorce decree.
16. Is mediation confidential?
Yes. At your first working session, the mediator and both parties will sign an Agreement to Mediate. This in combination with the requirements of Minnesota Supreme Court Rule 114, make the mediation confidential, which means that all mediation discussions, communications and notes cannot be used as evidence at a trail. In addition, it prevents the mediator from being called as a witness in a trial.
17. Is a mediated settlement the same as a legal settlement?
Not exactly. After both of you resolve all of your issues in mediation, the mediator will write up your agreements in a mediated settlement memorandum. The mediated settlement memorandum then goes to an attorney to draft the legal documents necessary to file for divorce with the courts. If either or both of you have an attorney at the beginning of mediation, then it’s common for one of your attorneys to draft the legal documents. These are then reviewed by the other’s attorney and approved. If neither of you has an attorney when you begin mediation, and choose not to have attorney representation, you can use an independent attorney – one who technically represents neither of you – but drafts all of the paperwork for the court. Either way, if there are any major changes needed or red flags pointed out by an attorney, you would return to mediation to renegotiate that issue.
18. Is it true that if I’ve moved out of the house, I will be considered to have have abandoned my children?
In an adversarial process attorneys may use this against you and accuse you of abandoning the children. However, in mediation you can reach mutual agreements about living arrangements and schedules for the children that satisfy everyone’s needs without jeopardizing any legal rights as interpreted by an opposing attorney. Often in mediation when it is necessary for a couple to begin to live separately, they will mediate who moves out of the house, and establish temporary agreements around home occupancy and payment of each spouse’s living expenses.
19. If I leave everything up to the Judge, will the Judge’s decision be fair?
No one has a crystal ball. Judges frequently say if both people are unhappy with the judgment, it’s a good one. We believe that both people can be satisfied with a mediated settlement and satisfied with the process being fair. Why not make your own decisions instead of letting strangers make decisions about your life for you?
20. Do both parties need to attend the post-divorce mediation sessions?
IT TAKES TWO. For post-divorce cases to successfully resolve their issues, EMI strongly suggests the “rule of two.” It takes two parents together in a two-hour mediation session. Indeed, mediating with one person is like clapping with one hand. Most of the time, post-divorce cases are resolved in one or two two-hour sessions. Usually parents are relieved that they have a place to be heard and a place to go if there is future conflict.
SHARED GOALS. In the session, the mediator help both parents re-frame the issues in terms of shared goals. One of those shared goals will be the happiness of your children.
A PARENTING PLAN. Often people come to EMI with a custody schedule and holiday schedule, but no detailed parenting plan. The mediator can help parents address how to handle issues going forward with mutual agreements that can be expressed in the form of a plan.
21. What if the other parent doesn’t want to participate?
If you need our help getting your co-parent to participate in a mediation session, contact us. EMI can either write a letter or make a call to the other parent on your behalf. Most divorce decrees require mediation prior to returning to court. A letter from us will document your willingness to try mediation and the letter often is successful in motivating the other parent to participate.
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Erickson Mediation Institute
3600 American Blvd West, Suite 105
Minneapolis, MN 55431
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Erickson Mediation Institute
3600 American Blvd West
Minneapolis, MN 55431