Often, parties in divorce or paternity actions are amicable and can agree on a final decree without a trial. There may be one or two issues, however, that the parties don’t see eye to eye on, and that’s where mediation comes in. Mediation is a private meeting where a neutral third party, called a mediator, helps the parties negotiate. Mediation is confidential, and information shared in mediation cannot be used at trial. 12 O.S. § 1824. Oklahoma strictly prohibits recording a mediation, and mediators cannot be ordered to testify about what occurred. Parties are also not required to settle in mediation. But what about the process? What actually happens during a mediation? Mediation normally occurs in one of two ways:
Mediating in the Same Room
Sometimes, parties prefer to mediate in the same room, where the mediator facilitates a conversation between them. This works best for amicable, low-conflict cases, especially when the parties do not have attorneys and expect to reach an agreement quickly. The parties and the mediator sit at the table together. The mediator walks through what the agreement must cover, such as custody, visitation, the holiday schedule, transportation, and the division of marital assets. If a party wants to discuss something privately, the mediator may meet with each party individually in a process called “caucusing.” In a caucus, the party tells the mediator what the party feels is important and whether the mediator may share it with the other side. If the parties get upset with one another easily, separate rooms work better.
Mediating in Different Rooms
It is very common for parties to mediate in separate rooms, and any mediation in Oklahoma that involves an attorney is likely to be held that way. When parties mediate this way, the mediator starts by meeting with one party, usually the petitioner, and discussing that party’s initial position. The mediator, party, and attorney work to craft a settlement offer, which the mediator takes to the other party to see whether a compromise is possible. The other party then shares their position and makes a counteroffer. This process continues until the parties reach a settlement or come to an impasse.
The Role of the Mediator
Mediators in Oklahoma are required to be impartial. 12 O.S. § 1824. Most mediators that attorneys use are other attorneys; however, mediators are not allowed to give legal advice. Mediators often draw on their experience to shape the process, and they may share what they think could happen at a hearing before a judge. Those statements are not legal advice.
Mediators usually lead the process, and mediation is often a conversation between the party and the mediator, with the attorney adding input as needed. That is because the mediator is hired to facilitate a compromise, and mediation is not the place to argue legal positions.
Who Pays for Mediation?
The standard rule is that the parties split the cost of mediation 50/50. Most mediators in Northeast Oklahoma charge an hourly rate and have a 2-hour minimum. Mediators usually collect payment at the end of mediation. Parties can privately agree on a different payment arrangement; however, such arrangements are uncommon.
What Happens Once Parties Reach an Agreement?
Once the parties reach an agreement, the mediator drafts a document that outlines what was agreed to. The mediator also drafts an agreed order approving the mediated agreement. One of the parties or the mediator takes that order to the courthouse, where the judge reviews and signs it. The parties then draft an agreed final order, such as an agreed order of modification or an agreed decree of divorce, and present it to the judge. It is important to understand that until the judge signs the final order or decree, your case is still pending.
Conclusion
Mediation is a great opportunity for parties to reach a fair resolution without involving a court. Reaching a settlement in mediation can save parties significant time and money by resolving a case faster. Good attorneys prepare clients for mediation by setting clear expectations of what they are and are not likely to achieve, and by advocating for reasonable, feasible positions. If you think your case may settle in mediation, or if you have an upcoming mediation and want an attorney, call Croslin Law to see how we can help.