With the caveat that there could be differences based on location (i.e., different states and Canada vs. USA).
Ok well how does it work when I've already filed my paperwork with the court and have a lawyer?
There is mediation and there is arbitration. During arbitration, you present your case and the arbitrator makes a final decision and it's binding. I've never heard of anyone using an arbitrator for a divorce but it's possible that it happens.
In mediation, you basically present your offer and the other side presents their offer... and the mediator (independent, 3rd party) give you their opinions and tries to convince both sides to reach a settlement.
There is independent of the existence of lawyers and/or judges. I attended mediation with my attorney. My ex attended mediation with her attorney. That is, mediation cost me $450 per hour (my attorney charged $300 per hour; the mediator charged $300 per hour and I was responsible for half of that). It's not cheap, but it's less costly than trial.
My first session of mediation was voluntary. I thought that it was productive but then my lawyer said that I was too agreeable after the fact. This is one of the reasons why I fired attorney#1 because she was in the room during mediation and if she thought that I was too agreeable... it was her job to tell me that during mediation.
The second two sessions of mediation were required by the courts (session#2 was triggered because I filed an appeal; session#3 was triggered because I was asking the court to amend our divorce ruling a year after the divorce was final). My second session of mediation ended after about 45 minutes. We made our offer; they made their offer. The mediator went back and forth a few times and both sides stood firm. The mediator then said "there's no point in continuing this" and the session ended.
Something similar happened in mediation session#3. We made our offer (which was: you voluntarily give up alimony or we take you in front of the judge) and they made their offer (which was: pay us $20,000 and we'll give up alimony). The mediator went back and forth a few times and said "okay, I'll give this one last chance." When she game back, the other side offered to give up alimony and to reduce child support by $170 per month for an additional $1700 (i.e., they caved completely). It was a really weird experience and my guess (in hindsight) is that my ex had stopped paying her attorney and their settlement offer was for the precise amount that my ex owed her attorney. I don't think that it hurt that the mediator overheard me and my attorney discussing our plans for requesting sanctions from the judge due to my ex's misconduct (she had failed to produce a number of documents during discovery; she had also made a number of conflicting statements while under oath -- simply put, the walls were closing in on her so she had a lot of legal pressure to settle).
Can I chose to use a mediator for thr majority if things and the lawer if wh become difficult?
My ex and I reached agreement on about 80% of the issues prior to trial. We went to trial to resolve the other 20%. So, yes, as far as I know.
I dont understand how a mediator is any different than a lawyer other than cost.
There isn't that big of a difference, so you are largely correct.
The question is whether you want to pay your attorney to negotiate with his attorney (offline). We reached a number of agreements without using a mediator. This involved me and my attorney discussing an offer to make. My attorney then sent the offer to her attorney. They then presumably discussed the offer and they counter-offered. This was slow and expensive.
For example, we reached an agreement on a property that we owned without the use of a mediator. (As background, we disagreed on the value of our marital home also and I paid for an appraisal on that property.) I said "I think that it's worth this and if you don't like that value then you can pay to have it appraised and we'll use the appraiser's value." Her attorney sent us several requests to "come up a little bit" but we responded that our offer was firm and if she didn't like it... it was her turn to pay for an appraisal. She eventually accepted our offer without getting an appraisal (my offer was very reasonable).
Mediation gets all of the parties together at the same time to negotiate a settlement. The mediator's job is to broker a settlement. To say, how about you give up something here in exchange for something there. That's harder to do if the lawyers/clients are negotiating on their own. It basically saves time (and money).
The mediator can also cut through some of the bullshit. My ex and her attorney liked to make up things. For example, during mediation session#3, a big issue was that my ex's salary had increased a lot in the 15 months since our divorce (by $15,000+ per year; she took a new job). They claimed that my salary had gone up a lot too, claiming that I made $10,000 more in 2021 than the judge determined my income to be. I showed the mediator my W2 for, which showed that my income was actually $5,000 less in 2021 than the judge determined my income to be. So, the mediator was able to stop that line of BS pretty quick.
But, you are right. A mediator doesn't do anything other than your attorney... except that your attorney is ethically required to represent you and your interests. HIs attorney is ethically required to represent him and his interests. A mediator is ethically required to trigger the both of you to reach an agreement without involving a judge.
Frankly I want a judge to set out child custody and support. I have enough to warrant supervised visitation. Especially with the criminal case.
I'll give you an example of where a mediator is different from a judge. A judge is required to follow the laws.
My ex's boyfriend got divorce around the same time that we did. His divorce agreement is available online and it's available on the Internet. This guy and his ex agreed to zero alimony and zero child support. His ex has 80% custody of their children and he has 20% custody of their children. If they had gone to court, he would have gotten at least 30% custody because that's the legal minimum and he would have been required to pay child support. So, she took more custody and less child support; he took less custody and less child support.
So, if you and your ex could agree to something that is different from the laws in your location... then mediation might be right for you.
I don't know how Canada's laws work, but in the USA... he might be interested in avoiding divorce court to protect his criminal liability. But, all of the documentation that comes up during your divorce could be used to help prosecute him of his crimes. Something like this happened with Bill Cosby, for example (I don't remember the details of the Cosby case).
I've also made sure to ask for a police enforceable court order regarding the kids IF supervised visitation isn't provided.
That doesn't sound like a mediation thing to do but I court and lawyer thing.
These might be mediation things if he would be willing to agree to these things voluntarily. You'd likely have to offer him something else in exchange.
In contrast, if you would be happy with how you think that a judge would rule... then that's the route that you can go. HOWEVER, a trial is way more expensive than a session of mediation. My trial cost probably $25,000 in legal fees for me. That was preparation time for my attorney, time in court for my attorney, and paperwork after the trial for my attorney.
OIN is giving her opinion that your STBXH is not a good candidate for mediation because he is unlikely to settle and/or compromise -- I am not a good judge of people and I would defer to her intuition on this.
My ex-wife was also someone who was unlikely to settle and/or compromise, which is ultimately why we went to trial. However, my ex-wife is also a covert narcissist and having a third party (the mediator) telling her that she was being unreasonable was very effective for me because she couldn't handle someone thinking that she was being a jerk.
You know your ex better than any of us. Your attorney should advise you on the legal issues. In the end, you are going to have to make the difficult decisions.
My divorce was complicated. I made a lot of decisions and in hindsight... I made a good decision on about 80% of them. My poorest decisions were the choices of my first two attorneys and the decision to hire the specific custody evaluator that we hired.
edited to add: Does he have an attorney? I would not make your decision as far as yes/no on mediation until you get some idea of how willing he is to settle. A lot of people (especially the primary money-earner) have a very wrong idea of how divorces should be (I made all of the money! I should get everything!) compared to how divorces actually are (you basically split all assets and liabilities in half; alimony and child support also happen). My point being... a lot of people are jackasses until they hire an attorney who then explains the reality of the situation.
[This message edited by barcher144 at 5:56 PM, Monday, July 31st]
