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Family Law Articles

Mediation in Family Matters
By Maryann J. Rabkin, Esq.

Mediation is utilized in connection with Court proceedings when custody and parenting-time is a genuine and substantial issue. The Court may refer a matter, during the pendency of the action, to Mediation for resolution. However, no matter shall be referred to Mediation if there is in effect a preliminary or final Order of domestic violence (Temporary or Final Restraining Order) entered pursuant to the prevention of domestic violence act.

The entire resolution of a divorce case may be handled in mediation, if the parties choose the course of private mediation. A mediator will ask numerous questions in order to ascertain the situation between the parties. The parties typically each have an opportunity to tell the mediator their concerns, and their viewpoints on resolution. Mediators work with the parties to address any interim emergent matters. They will clarify the strategies and theories of resolution offered by the parties. Mediators will give the parties directions to plan for sessions. From time to time, mediators will send the parties back to their attorneys to consult about their legal rights and to debrief and prepare for future sessions. In my experience, it is always helpful for each person to be represented by independent counsel even during the mediation process, as the role of a mediator does not include giving legal advice to either party.

In Mediation, the parties will have a full and complete opportunity to resolve issues according to what they determine to be in their best interest, and in the best interest of a child. Both parties must be satisfied with the resolution and agree to the terms of settlement. If there is no agreement, the parties will then be left to their alternative options, including litigation and other complementary dispute resolution alternatives.

At the conclusion of mediation, the mediator will prepare a memorandum of understanding, setting forth the agreements reached between the parties. That memorandum of understanding should be taken to one of the parties’ attorneys for purposes of drafting a full and complete Marital Settlement Agreement. Once that agreement has been drafted and reviewed on behalf of both parties, the parties then will enter into an agreement resolving all of the issues between them. In this way, the parties can then move before the Court in an uncontested matter, comfortable and satisfied that they have self-determined the resolution of their divorce.


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