- Family Law
- Dispute Resolution
Mediation is a non-adversarial, “interest-based” method of alterntive dispute resolution used in many types of civil cases, including divorce. Private mediation requires the agreement of both parties to participate in the mediation process. The parties meet with a neutral third party, the mediator, who guides discussions on issues in dispute, such as alimony, child custody, child support and division of property.
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:
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:
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)
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.
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.
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.