What if I Don’t Agree to Mediation?

Many Judgement and decrees contain some language that states you will attend mediation prior to filing any court motions.  It is pretty much standard procedure and is designed to help you coparent following divorce and also to keep the court calendars from being inundated with cases.

It really is in your best interest to try to negotiate an agreement outside of court.  When it comes to parenting time, you know the factors that need to be considered when creating a parenting time plan.  You know the schedule of both parents.  You know what activities your children will want to be involved in or that you want to enroll them in as time goes by.  If left up to a judge, it may not be something that works the best for your family or doesn’t create more problems in the future.

There are times when, in the course of divorce, you and the other parent worked out a parenting time schedule that seemed to work.  neither of you have ever done this before and may have assumed things would go a certain way, but when put into play, it didn’t work.  Circumstances may have changed for one or both parents and now the schedule doesn’t work.  These are things that happen in the real world.  Family Court has many gray areas.  You cannot possibly cover every event that may arise.  The court expects that parents will work together and be flexible as life circumstances change or the children’s needs change as they get older.  Sometimes parents can do that and sometimes they cannot.

When a conflict occurs, both parents may have very different ways to resolve it.  The more you are stuck on your position, the more deeply entrenched in conflict you become.  If neither party is willing to bend a little, you will start moving farther and farther apart.  None of this is helpful, but it is all too common in post divorce issues.  Emotions are high.  Both parents start to read things into the conflict that may not really be present, based on the relationship the parents have had.

One parent may contact their lawyer to find help.  If your Judgement and Decree requires you to attend mediation, you should give it a try.  Mediation is a voluntary process.  You don’t have to attend if you don’t want to.  If a mediator is contacted by a party who wants to initiate mediation over co parenting issues, the mediator will attempt to reach the other party and invite them to mediation.  My process is to get the contact information of both parties and send a letter to the responding party, inviting them to mediation.  I wait a period of time for a response and then will follow-up with a phone call.  I will wait another period of time for a response and if none is received, I will send a closure letter to inform the initiating party that no response was received.  This is rarely the end of the matter.  Many things can happen at this point.  The initiating party may file a court motion.  The responding party may contact their attorney.  Most likely the attorney will confirm that the Judgement and Decree does tell you to attend mediation prior to court.  When this happens, the responding party may end up contacting the mediator after all.  At this point, the mediator can reach out to both parties to schedule a session.  Keep this in mind when you receive a closure letter from the mediator.  Just because no response was received initially, it doesn’t mean that mediation is completely off the table.

In the event that a party does ignore an invitation to mediate, the situation will be that the initiating party can go ahead with a court motion if they want to.  Family Court will be more expensive and out of your control.  Mediation is a confidential process.  You can say anything in mediation and none of it is admissible in court.  Mediation is the best opportunity for you to control the outcome of an agreement.  The cost of mediation is shared between parties, although in cases where there is a huge discrepancy in incomes, one party may agree to pay all of the fees themselves, but don’t count on it.  Mediation agreements are not anything that is decided by the mediator.  The mediator is a neutral who is going to help the two of you have a conversation about the conflict.  The terms of the agreement are up to the parties.  If an agreement works for you, that is all that matters.  It is your agreement, for you and your family.  That is why you should at the very least, consider mediation.  If you ignore the request completely, you miss the opportunity to ask the mediator questions about the process.

Mediation is voluntary.  You do not have to attend.  Hopefully if you receive a letter from a mediator, you’ll use the opportunity to bring forth issues you want to discuss and save money, too.  The choice is yours, but mediation is less expensive, less stressful and can happen in a more timely manner than waiting for a court date.

Image: Stuart Miles / FreeDigitalPhotos.net

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