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Binding Mediation and Non-Binding Mediation
Binding Mediation Defined
Mediation is a process in which a neutral third party facilitates communication between parties in a dispute. The aim of mediation is in helping those parties reach a mutually acceptable resolution.
It is possible for mediation to take place before a divorce is filed, or after. Mediation can be with attorneys or without attorneys… but no one should go into a mediation without the knowledge of what their rights are and understanding all of the facts and circumstances that must be considered before any agreement is reached.
An agreement in mediation can result in a legally enforceable agreement, if the agreement is in writing and signed by the parties, or properly recorded by the mediator.
A mediation can also be advisory in nature and not create a legally binding outcome. In any event, the parties are free to disagree and reject the mediator’s recommendations and pursue other avenues for resolving their dispute.
Non-binding mediation is often used as a less formal and less expensive alternative to litigation. According to the American Bar Association, non-binding mediation “offers the parties an opportunity to gain a deeper understanding of their dispute and to explore creative solutions to it, without the constraints and risks associated with litigation” (American Bar Association, “The Section of Dispute Resolution Mediation Definitions,” 2017).
In the divorce process, mediation can be very helpful in resolving issues related to things like:
- Division of Assets
- Parental Time Sharing
There are two types of mediation that exist in a divorce situation.
After Filing for Divorce
The most common mediation is a mediation that occurs after a Complaint for divorce is filed. That will be after the husband and wife both have attorneys and after information is exchanged.
There will usually also have been a status conference, or a pre-trial hearing and a mediator is either ordered by the Court or agreed upon by the attorneys.
At that time, the husband and wife attend the mediation with their attorneys in an attempt to settle the case.
The main reasons for settlement at mediation are that everyone has all the information they need to make a decision, everyone finally understands the issues, and everyone agrees that they do not want to spend more time and attorney fees going to trial.
Mediation is mandatory in every case that does not settle before trial, or before the mediation is scheduled.
Voluntary or Facilitative Mediation
The second kind of mediation that is available is a voluntary mediation, sometimes before a divorce case is even filed with the court.
This type of mediation is sometimes called “facilitative mediation” because the mediator is working to help the spouses reach an agreement. In this form of mediation, both spouses agree to hire a mediator (who is usually an attorney) to help them with the following:
- Identify the issues
- Gather and organize the information and documentation necessary to determine a division of assets and liabilities
- Determine child support and spousal support
- Resolve any other issues that might exist
And attempt to reach an agreement before anything is filed in court.
If a full settlement is reached, a written agreement is prepared and signed by the spouses.
Once an agreement is signed, at th at point a signed mediation settlement agreement is binding on each spouse and cannot be changed
After that agreement is reached, then the Complaint is filed with the Court and a final Judgement of Divorce is prepared to filed with the court. The final judgement of divorce will include all of the terms in the written and signed mediation settlement agreement.
In this situation, the Mediator does not represent either spouse. The Mediator’s role is to work with the spouses to help them communicate and understand the issues, along with fdthe likely results of litigating their case in Court based on Michigan law.
This kind of mediation allows both spouses to work toward a settlement that both agree on and believe is in their best interest, along with the best interest of their children, if they have any.
This kind of mediation can allow spouses to keep the case amicable and avoid the stress of litigating a divorce case in the Court.
And can also help the spouses avoid spending excessive amounts of money on attorneys that might not be necessary if they can find a common ground to settle the case between themselves.
The key detail in this type of mediation is that everyone has to agree to go to this mediation.
Divorce Attorneys and Mediation
As a divorce attorney, The Smart Law Group can only represent one party of the suit.
Your attorney’s role is to protect and advocate for you and represent your interests alone. Even during the mediation process.
Divorce laws and terms of mediation agreements impact your final divorce filing and that will have an impact on your financial future, your parental time sharing, where you live and HOW you live after the divorce.
You need an attorney to interpret the legal language, provide a range of options and fight for your future, even if the divorce is amicable.