The mediator’s role to is to intervene between the two parties intending to divorce and help them reach an agreement through an amicable, “interest-based” process to help minimize litigation and/or involvement from the courts.

It is important to note that a mediator does not represent the interests of either party and therefore cannot provide advice. A mediator’s findings and/or recommendations are not legally binding to the parties and cannot be shared with a Court, unless they are embodied in an actual agreement. Mediators manage the process from start to finish until a resolution by the parties is reached or the process breaks down. A mediator’s duties and responsibilities depend on the type of dispute and may include:

•  Schedule meetings and conferences with both parties.
• Create and maintain an environment in which the parties can communicate, exchange ideas, and resolve their differences;
• Facilitate a written agreement.
• Analyze the parties’ claims.
• Research laws and procedures that apply to the case.
• Offer solutions that address all parties’ self-interests.
• Evaluate the case in a fair, unbiased manner.
• Assist the parties with the implementation of their agreement.
• Refer clients to attorneys and other legal authorities if or when necessary.
• When necessary, the mediator will refer the parties to third party experts for services like appraisals and valuations;
• Ask relevant questions to obtain more information.
• Help both parties understand each other’s point of view.

Always remember that a Mediator’s objective is settlement [vs. protection of the best interests of the parties (individual or collective)]. Given this singular objective, it is always the case that an individual’s best interests are extremely vulnerable to being compromised for the sake of expediency, convenience, simplicity, or some other inappropriate reason (e.g. an overzealous spouse who may railroad or guilt the other spouse into the process when it just doesn’t feel “right”).

And so, there is certainly plenty of good reason to stop, pause and fully consider how if Mediation can really work for you AND what level of representation and protections are appropriate have in place.

Yes, Needle | Cuda recommends as a Best Practice that a Divorce Action should be filed in Connecticut Superior Court’s Family Division as an important protection and backstop to every divorce mediation.

It is a commonly held misconception that if you mediate, you cannot or should not actually file a divorce case: litigation and mediation can and often should co-exist in the same case, particularly so that the Automatic Orders are in place as well as to facilitate being able to seek relief from the Court if the mediation process is unsuccessful. A divorce case can be filed in Court, mediation can proceed, and everything can still be as amicable as possible. There are just protections for both parties in place which can often aid in a fair negotiation process.

There are no state standards or licensing requirements in the State of Connecticut. Mediator education, training, experience and style vary. It is up to the people involved to decide what they need in a mediator and assess whether or not that the mediator they choose has the necessary skills, credentials, style, and approach to make them a good fit.

Individuals can practice as private mediators. The Connecticut Judicial Branch does not maintain lists of, or endorse any, private mediators. The Courts suggest that those thinking about hiring a private mediator inquire as follows:

• What experience does the provider have?
• What specialized education or training does the provider have?
• Does the provider follow any rules of conduct or ethical standards?
• What is the basis for fees charged?

Having the benefit of legal counsel can assist you in choosing an experienced mediator who is a good fit for your case.

No, it is not required for mediators to be a member a state bar or to have law degree.

While some mediators are practicing lawyers or retired judges (both who have a law degree), other mediators may have backgrounds in other professional areas like social work, business and accounting. Even if a mediator is a lawyer, the mediator is not your lawyer. Notwithstanding the particular background and expertise of your mediator, he/she plays a unique role of a neutral individual that does not represent or advocate for either party. Neutrality is paramount to the role of mediator.

Accordingly, mediators only provide and present information about state laws and local court procedures and do not discuss how these laws and procedures apply to or impact on your issues and circumstances. Mediators do not offer any legal advice. Mediators do not interpret statutes or laws and do not recommend any specific legal action (or any other action for that matter) that would benefit either party over the other.

No, of course not. A mediator may help facilitate reaching an agreement, but that is not a substitute for legal advice, which a mediator cannot offer because he/she does not represent either side (and they certainly do not represent both sides). In divorce and family mediation, there is always a vital role for consulting attorneys also known as “Review Counsel.” Each party to a divorce or marriage dissolution has a separate and independent legal interest.

It is therefore essential to seek advice from your own lawyer both before and/or during a mediation to ensure your separate interests are protected. Involving legal counsel sooner rather than later may be very helpful. Once you have already committed yourself to a flawed plan in mediation without a lawyer, it is harder to fix that problem than to avoid it in the first place with proper legal advice. (See Review Counsel and Represented Mediation)

Needle | Cuda does not serve or function as a (neutral) divorce mediator. We are advocates. Needle | Cuda is often involved in cases that are mediated (in part or in whole) as a Review Counsel or as an attorney in a Represented Mediations and thus has a vast amount of experience advising and advocating for our clients in mediation as it is frequently used as a method of dispute resolution.

With respect to Divorce Mediation, our Attorney’s often serve as Review Counsel for clients and review mediated agreements before those agreements are entered and finalized before the Connecticut Superior Court (Family Division).

Needle | Cuda advocates a Best Practice called “Represented Mediation” and represents clients in that process. Actively having the benefit of legal counsel going into and throughout the mediation process offers many benefits which may not be available with just using a lawyer as “Review Counsel.”

With respect to family law and a wide range of post-judgement matters, Needle | Cuda tactically uses mediation to resolve disputes as a time and cost-efficient alternative to litigation. Mediation is an appropriate venue for almost any kind of family dispute (e.g. alimony, custody, post-divorce financial issues, parenting plans, etc.) and can be a successful mechanism for keeping costs (both financial and emotional) in check.

Review Counsel, in the context of Divorce Mediation, generally refers to an attorney who is hired by an individual to review a fully-mediated divorce agreement and to advise that individual on risks, issues and concerns in that agreement related to their independent, separate legal interests before that agreement is finalized in Connecticut Superior Court and entered as a court order called a Decree of Dissolution of Marriage (also known as a Divorce Decree).

Retention of Review Counsel is generally considered to be a prudent decision. A final consultation with Review Counsel is also recommended by most Mediators — as a common-sense measure and also as a means of mitigating liability—since Mediators do not offer any legal advice and are by definition neutral in the Mediation process.

Connecticut Divorce Laws are complex and have many nuances depending on your unique circumstances. The components of a dissolution of marriage: Alimony, Child Support Custody (Physical and Legal), and Division of Property once finalized cannot be un-done, although there are ways to pursue modifications, subject to meeting certain thresholds.

In simple terms, it is the role of your Review Counsel to highlight the risks and issues inherent in Mediated Divorce Agreement based to make sure that you clearly understand any risks and all the important considerations of your situation with respect to Connecticut Law.

That said, because asking Review Counsel to review a divorce settlement agreement after it has been fully mediated is similar to asking a baker to unbake a cake, Needle | Cuda strongly recommends “Represented Mediation” as a Best Practice. Our many years of experience informs that when each party has the benefit of some material level of legal input throughout the process of a mediated divorce agreement, the outcomes tend to be more comprehensive; agreement obligations are more clearly defined and therefore are more easily enforced; and carry a higher probability of “sticking” as compared to mediations without experienced legal input throughout.

A “Represented Mediation” is a Divorce Mediation wherein one or both parties are independently represented, in the background, by family law attorneys through each stage of the Mediation process, including their review of your final mediated agreement as “Review Counsel.” The attorney(s) work hand-in-hand with each party and advise on all aspects of Connecticut Law involved in the dissolution of marriage and the negotiation of Alimony, Child Support, Custody. Parenting Plans, and Division of Property, etc.

This does not necessarily mean that the attorney(s) is involved in every meeting with the Mediator, althought that can happen. It simply means that meaningful legal advice is provided each step of the way to one degree or another.

In general, the answer is yes: what happens in mediation stays in mediation. One of the benefits of the process is the confidentiality attached to it, rather than creating a public record in an open courtroom. However, there are certain limited exceptions. For example, if there is an agreement reached in mediation, then the mediation proceedings may be available to some extent to enforce that agreement. Also, just because something is referred to in mediation does not then later place it off limits, if it would be otherwise discoverable, just because it was used in mediation. In order to best understand the benefits and limits of mediation confidentiality, you should consult legal counsel.

The mediator is an impartial third party who assists the parties in coming to a resolution concerning their divorce or family law matter. One prerequisite is that the parties must agree to mediation. The mediator, an individual who will conduct and guide the mediation, must also be agreed to by both sides. Mediation services will often have multiple choices for who will conduct the mediation. It is crucial to select a mediator with whom both parties feel comfortable and have no prior history with the matter or those involved. A mediator or mediation service that is reputable and respected within the industry should have a database of reviews or testimonials that will describe the experience that others had while using them.

Mediation differs from traditional litigation in several ways. Fundamentally, litigation is adversarial, while mediation is not. This means that in mediation, the parties work together along with the mediator to come to a resolution on the issues. The mediator does not make decisions and does not provide legal counsel. Unlike a judge, a mediator does not make rulings and cannot force the parties to do anything. The sole purpose of mediation is to resolve the issues jointly through an agreement.

Not all family law issues can be resolved through mediation. Cases that reach the litigation phase have failed to agree on litigated issues. Litigation involves going to trial in a courtroom where a judge will decide. In a trial, the parties can present evidence and argument. It is common for the parties to retain legal counsel to represent them throughout the litigation process.

While both are forms of alternative dispute resolution, arbitration shares more in common with litigation than mediation. Arbitration centers around the parties resolving their family law issues by using an arbitrator. The parties agree on this individual and on the rules of how the arbitration will be conducted. The arbitrator will listen to evidence and argument and render a binding decision.

Many couples look to mediation to control the cost of resolving their family law dispute. The truth is that the cost of mediation must be looked at regarding the total outlay of resolving all family law issues. Consider a case where some issues are resolved through mediation while the remaining ones are litigated. In that scenario, the total cost of handling all the issues within the legal matter may be equal to or near that of litigating them.

For couples who can work together to resolve all their family law issues through mediation, the cost can be significantly lower than other forms of dispute resolution. Still, it is important to note that multiple mediation sessions may be required for complex cases. It is recommended that parties retain their own private legal representation in those cases. These costs can quickly add up, making mediation more expensive than expected.

If an agreement is reached during mediation, it is not finalized until the court approves it. This means that either party can back out before its submission for approval. It is not unusual for a party to reach an agreement in mediation and then have their lawyer review it before it is made final. This service is known as a review counsel. Needle | Cuda recommends and provides this service to parties seeking legal counsel assurance that what they have agreed to during mediation is in their best interest.

Within the context of mediation, both review counsel and represented mediation seek to give a party insight into the legal ramifications and risks inherent to mediating a family law issue. While both functions seek to accomplish the same goal, one is more intensive than the other.

Review counsel is typically used after a mediation agreement has been reached. The attorney then reviews the document and advises the client on how the agreement will affect them legally and otherwise. If the agreement is unfavorable to the client, then the review counsel may suggest how to cure the bias. Most importantly, review counsel ensures that the client fully understands what has been agreed to and that the document says what the client thinks it does.

Represented mediation takes the role of review counsel a step further by being involved in the mediation process from start to finish. This can mean crafting a plan for the client before mediation and, in some cases, sitting in on mediation sessions. While counsel may not be present in every meeting, they will be integral in advising the client on each step of the mediation process, including reviewing the final settlement agreement.

Mediation is considered an alternative dispute resolution method for its potential time-saving benefits. While this is often true, the time savings are usually only felt for parties that can resolve all their issues through mediation. For parties engaged in partial mediation, the perceived time-saving benefits may be diminished as the remaining issues will need to be resolved through litigation or arbitration. Again, mediation is best used in cases where couples are not far apart on the issues and have expressed a willingness to work together to produce a mutually beneficial outcome. For all other cases, mediation may provide minimal time-saving benefits.

It is also important to remember that Mediation is NOT binding, so if an agreement is not reached, another process will need to start (e.g. Litigation or Binding Arbitration ).

Unless there are no assets or children involved, most divorces will take time to complete. Like all other forms of dispute resolution, mediation is not immune to that general rule. On average, expect to conduct multiple three-to-four-hour mediation sessions over several months. For more complex cases with significant assets or where children are involved, the timeframe can extend to up to 6 months. If the mediation process breaks down and a resolution cannot be reached, the remaining issues will need to be litigated and naturally will extend the total timeframe of the divorce.

Mediation is not an all-or-nothing proposition. Many couples elect to use mediation in conjunction with litigation or arbitration. A typical scenario is when divorcing parties are open to an agreement on child custody but cannot agree on the division of marital property. In that case, mediation can be used to resolve the custody piece while the remaining issues are handled through traditional litigation. If mediation is successful, the agreement reached will be incorporated into the divorce decree or settlement agreement.

In a divorce action that is being broadly litigated, where both parties have attorneys, the parties can turn to mediation with their attorneys to resolve a specific issue or sub-set of issues. Conversely, mediation can be used to resolve all divorce-related issues if the parties are amenable. At Needle | Cuda, we frequently use mediation and arbitration to resolve sticking points while reserving litigation for issues that cannot be worked out otherwise.

Yes, it is Best Practice to file a formal divorce action prior to the commencement of divorce mediation.

It is important to understand that mediation generally falls outside the important protections offered by formally filed lawsuits and traditional divorce actions in Connecticut family court.

Why are protections offered by Automatic Orders important during Mediation?

Mediation leaves open the possibility for a party to self-help and to engage in an activity or activities to change the status quo during the mediation process with respect to property and/or children. A bad actor can do things like unilaterally borrow large sums of money, sell or give property away, take minor children out-of-state or out-of-the-country, change insurance beneficiary designations, let insurance coverages lapse, etc. Automatic Orders protect the status quo of finances (and children), but required a formal divorce action to be filed with the Connecticut Superior Court.

While these kind of bad faith actions are, of course, unethical and improper on the part of the parties, such abuses are risks that are inherent to, and downside risks of mediation. There may be ways to try to address some of these problems in the divorce itself, but it will almost always be better to avoid the problem in the first place. There are also some problems which later simply cannot be adequately remedied. Some parties use the prospect of mediation as a delay mechanism to put their “divorce planning” into effect, while their unsuspecting spouse thinks everything is being done amicably. One spouse may even bully the other into mediation, by acting like divorce “litigation” has a stigma to it, to imply that the spouse wanting the protection of the automatic orders is the unreasonable one.

Filing a formal Divorce Action before you start Mediation will trigger Automatic Orders and all of the inherent protections in Connecticut need to maintain the status quo.   Proceeding in this manner will allow you to freely move through your Mediation with the peace of mind that a safety net exists with the equitable protections that the courts provide.