What is Early Mediation?

Early Mediation is typically an intervention early in the case to try and keep from going into litigation.  In other words, it is an attempt to see if the parties can work cooperatively to resolve the case before heading down the adversarial path.  At this stage in the case, the parties are wanting to see if they can come up with their own agreement before turning the case over to their attorneys for a full litigation (court-based) process.  Early Mediation usually takes place in stages – the parties will meet with the mediator in a series of meetings, with homework in between Mediation sessions.  The role of the mediator is to help guide the conversation between the parties (facilitative Mediation).

This is different from what happens in typical divorce litigation.  When divorces are litigated, mediation usually takes place late in the case – trying to get the case settled after most of the trial preparation has been done but before it actually goes to trial.  In this style of mediation, often called a Settlement Conference, both attorneys go with their clients to see the settlement conference Mediator, who then gives his or her opinion of what the likely outcome at trial would be (evaluative Mediation).  The Mediator then pushes both sides to agree to something along the lines of what the Mediator believes will happen if they go to trial.  The idea at this point is that if the two sides can agree on what a Judge is likely to do, then they should just do that without spending all the money to go to trial.

When parties are engaged in Early Mediation, the role of the attorneys is often limited to offering legal advice and assisting with the preparation of legal documents, though the parties may at times invite their attorneys to attend the Mediation as well.  Because at this stage in the case the evidence has not been fully developed, the parties will be tasked with gathering various kinds of information – lists of property, property values (this might mean getting some items appraised), anticipated budgets, etc.  The Mediator will assist with spreadsheeting that information, and then help them evaluate what their options are given the resources they have as well as the goals and interests of each party.