Mediation FAQs

What Is Mediation?

Mediation is a process where the parties and their attorneys, if they have them, meet with a mutually selected neutral person who assists them in negotiating a settlement of the issues in dispute in their case.

Is Mediation Required?

In Tulsa County, mediation is required prior to proceeding to trial on the merits of a case. Many other Oklahoma counties also require mediation, especially if one of the parties requests it.

Who Chooses the Mediator?

The parties’ attorneys thoughtfully select the mediator, taking into account the specific issues in dispute, the parties’ respective personalities, and any areas in which the mediator may have special expertise.

Is the Mediator Always an Attorney?

While the mediator does not have to be an attorney, it is rare for a non-attorney to serve as a mediator in a family law matter. While the attorney mediator is not permitted to provide legal advice to the parties, he or she can impart a great deal of practical wisdom as to his or her experience with a specific legal issue or the judge assigned to the parties’ case. Oftentimes this information shared by the mediator is instrumental to assisting the parties in reaching a settlement. Non-attorney mediators unfortunately do not have the same experience to share during mediation sessions.

How Does Mediation Work?

The mediation session typically takes place in the mediator’s office or in the office of one of the parties’ attorneys. The parties and their respective attorneys are in separate conference rooms throughout the mediation session. In fact, it is likely that a party will not see his or her spouse during the entirety of the mediation session. After introducing himself or herself and relaying the “ground rules” for the mediation process, the mediator will start the negotiation process in the conference room of the party that he or she believes is most ready to make the first offer. The mediator will travel back and forth between the parties’ respective conference rooms, not only carrying offers, but exploring areas for compromise and helping the parties and their attorneys come up with creative solutions to the issues in dispute.

If an agreement is reached at mediation, the mediator will likely summarize the agreed-upon provisions in a typewritten term sheet that is signed by both parties and their attorneys. These term sheets are frequently presented to the court for approval pending the preparation of the final order terminating the pending litigation between the parties, which is most often a Decree of Divorce.

Who Pays for Mediation?

The parties typically equally divide the cost of the mediator’s fees. Other fee division arrangements can be made by agreement in advance of the mediation session. All non-equal fee arrangements should be communicated to the mediator’s office before mediation begins.

Is Mediation Binding?

No. However, if a settlement is reached, the mediator drafts a term sheet including the provisions of the settlement. The most common practice is for the term sheet be incorporated into an Agreed Order Approving Mediated Agreement that is presented to the Court for signature. While a Court must always approve a property settlement agreement as fair and equitable and custody provisions to be in the best interest of the parties’ children, having the mediated terms incorporated into such an Agreed Order makes it more difficult for either party to escape enforcement of the mediated agreement’s terms.

What Are the Benefits of Mediation?

Mediation allows parties to resolve their case much more cost-effectively than mediation. Trial can cost thousands of dollars in attorneys’ fees and expert costs, and it can take several months to get a trial date from the Court. Mediation also allows parties to maintain control over the outcome of their case. While the parties are naturally adverse in the litigation process, they know their family and finances better than anyone else and are better suited to make decisions on those issues than the Court, who is a stranger to the parties. The age-old saying, “the devil you know is better than the devil you don’t” certainly rings true in the mediation process, especially with the sensitive issues involved in family law cases. Lastly, prolonged litigation – especially trial – severely deteriorates parties’ relationships, which has a lasting effect when parties co-parent children. Settling at mediation and avoiding the damaging effects of adversarial proceedings has a real value to families.

Can I Bring my Friend, Relative, or Significant Other to Mediation with Me?

It depends. Each mediator has his or her own policy regarding third parties’ presence at mediation. Even if the mediator does not allow a third party support person in the mediation session, there is no reason why a party cannot make a phone call to a third party for support during the session.

Will the Judge Learn About the Specific Concessions I Was Willing to Make at Mediation?

No. Mediation is a confidential process, and none of the settlement negotiations that take place during mediation can be shared with the Court. This way the parties can feel free to be creative and make settlement offers that do not align with their litigation positions. The only information provided to the Court after mediation is that the parties participated in good faith and that a settlement was (or was not) reached.

How Do I Prepare for Mediation?

Every attorney has a different process for preparing for mediation. I typically meet with my clients in advance of the mediation session to explain the process, review all marital assets and debts, and make sure that my clients know what they want in terms of a custody and visitation scenario. Mediation, while very important, is an informal process. Parties can request that the mediator step out at any point in the mediation session to have a confidential discussion about any issue in dispute. Parties are also permitted to take breaks in the event they need time to think or clear their heads. My goal is to make sure my clients feel supported while making important decisions during the mediation process.