How Is Mediated Divorce Different Than An Uncontested Divorce?

An uncontested divorce usually means the parties agreed on all of the matters upfront. The attorney would only need to do an agreement, file a petition and guide them through the court system. In this case there would not be any negotiation or mediation.

Parties usually mediate when there are unresolved matters. Oftentimes, mediation happens before a case gets filed. It then gets filed as an uncontested divorce if it was done pre-suit.

Mediation is definitely more affordable than a standard divorce process through the courts.

Aspects Of Confidentiality During Mediation

If I have mediation in my office, the parties would come in and I meet with them either separately or together. I would give an opening statement and basically tell them about the rules. I then tell them that I am neutral and I do not represent either party in the case. I would also have to explain the different aspects of confidentiality.

During the mediation, we would not be allowed to talk to anybody else in regards to the situation as everything discussed is confidential. Also, I could not be compelled to go into court and talk about what was discussed in the mediation. Nothing would be admissible in court. There are exceptions such as if a person reported child abuse or elder abuse or that they were about to commit a crime. In that case I would have a duty to report the matter to the appropriate agency.

The other part of confidentiality is that I would be going back and forth between the parties usually in different rooms. Therefore, if one party wanted to ensure I did not reveal something to the other party, then they would have to let me know it is to be kept confidential.

The other exception to confidentiality is that at the end of the mediation, if an agreement is reached, I it would be put in writing and would become a public record at that point in time.

Even with that, there are certain instances, usually in civil cases, where the agreement would not be filed with the court and it would be kept confidential.

This often happens in civil cases where there is an agreement and the parties agree to dismiss the action. This is especially true in personal injury type cases where the person who was paying money out did not want anyone else to know the sum of money. The parties would be bound by continuing confidentiality in that case.

The Mediator Would Not Be Able To Decide The Case

I sometimes need to remind the parties that I am not a judge so I do not make the decisions in the case. This is important to remember because people who come into mediation, especially attorneys, often come in wanting to argue their case and trying to convince me of something.

I have to then explain that they do not need to convince me of anything. They would actually have to convince the other side. I tell them we are not here to argue the case but to try to resolve the case.

The other thing I have to let them know is that I cannot give legal advice, even though I am an attorney. The parties would have their own attorneys, from whom they could rely on.

Someone who was not represented by an attorney, would have a right to at least talk to an attorney before making a decision, which usually does not happen in mediation. They would usually agree at that point in time but I would have to inform them that they have that right.

As mentioned, I do my introduction and advise of the rules of mediation. We then start discussing the issues in the case. It would often be more productive if this was done separately. I walk through all of the issues with each party and attempt to have the parties come up with their own ideas for resolving matters. I try to get people to think differently and think in terms of what their actual needs would be in that situation as opposed to them just locking in on a position.

If we are able to reach an agreement, we can reduce it to writing. The agreement will be typed out and the parties would then sign and usually the mediator would file the agreement with the court. The attorneys then send in an order to the court, enforcing the terms of the mediation agreement.

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