The mediation process starts with an agreement to mediate. That agreement will set forth the issues to be mediated, the mediator chosen by the parties, the date, time and duration of each of the mediation sessions, the cost of mediation, by whom they’d be paid and what, and if any information or documents will be exchanged between the parties in council before meeting.
The mediation sessions themselves can vary as far as process and procedure. In some cases the parties, their attorneys, and the mediator all remain in the same room for the duration of the session. That is pretty rare as it can be difficult to talk through emotional issues and evaluate proposals and counter-proposals with your spouse and his or her attorney present. More frequently the parties and their attorneys occupy separate rooms with the mediator shuttling from room to room to convey information and proposals.
One thing that does not vary is the confidentiality of the mediation process. In an effort to encourage compromise of pending disputes, our courts mandate that any offers of settlement convey that mediation cannot later be used against you in litigation. This allows you to make reasonable proposals at mediation without fear that your ex, or soon to be ex, will later use your proposal in court to undermine your position on an issue to which you offered a compromise.
The arbitration process, much like mediation, also starts with an agreement, which sets forth the issues to be arbitrated, the identity of the arbitrator, whether or not the arbitration is binding, the cost of the process and how they will be paid, the scope of the arbitrator’s authority to provide over discovery issues and pre-arbitration motions, and finally the scope of the arbitrator’s ruling to reach binding or nonbinding decisions.
Usually some limited discovery is conducted subject to the oversight of the arbitrator, if not previously collected in a litigation posture. The arbitration hearing itself proceeds like a trial in court, each side calls witnesses, provides testimony, and submits documentary evidence. The arbitrator rules on any objections, concerning the admissibility of testimony and evidence, and then makes a decision on disputed issues in conformance with the governing law on the issues and the jurisdiction of choice.
Family lawyers Heather Collier and Erik Arena are partners at Dragga, Hannon, and Wills law firm in Rockville Maryland. Heather has been recognized as a “Super Lawyer” in the area of family law for the fourth consecutive year, and selected to the Super Lawyers’ list of Top 50 Women Attorneys in Maryland. Erik has also been named a “Super Lawyer” in family law, and a “Best Lawyer” in Maryland family law by Best Lawyers in America. To learn how Heather, Erik, and the team at Dragga, Hannon, and Wills can help you choose the right dispute-resolution process for your divorce, please visit DraggaLaw.com.
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