I have practiced family and divorce law all over Western Kentucky and Southern Illinois and talked with numerous judges all over the area. Almost without fail, if you ask a judge how he or she deals with hearings in family law and divorce cases, he will say that, if he makes a decision where everyone walks out of court angry, it was probably a fair decision. That is a terrifying prospect. Imagine; the person who is making a decision that will have such deep impact on your family’s emotional and financial future well-being is making that decision with the intent to make you angry.

Mediation is a practice that puts the power to control your destiny back in your hands. The mediator does not actually make any decisions about your case. Instead, he or she tries to help you and your spouse open the lines of communication.

The mediator will usually give each of you an opportunity to tell your side of things and go back and forth trying to facilitate the negotiation. Keep in mind that, although the mediator is often a licensed attorney, he/she is not there to give you legal advice. Nevertheless, if the mediator is an attorney, he may give you a general idea of what he has seen a particular judge do in some cases or what a judge’s “rule of thumb” is on certain issues. The mediator will also suggest several possible solutions to the issues discussed and, basically, act as the referee if necessary to keep the parties talking.

Everything that is said in mediation is confidential and part of settlement negotiations which are not admissible in court. The mediator cannot be subpoenaed to testify later in court and various offers made during mediation are not admissible. If the mediation is court ordered, the mediator will be required to file a report with the court stating whether the parties appeared, whether they mediated in good faith, and whether an agreement was reached. The only other exception to the confidentiality rule are the requirements placed on any other citizen and/or member of the bar by statute or ethics rule (usually that a child has been abused or neglected or someone is about to commit a crime that will likely result in bodily harm to another).

If you reach an agreement that works for you and your family, the mediator will prepare a written agreement for the parties (and their attorneys if applicable) to sign. That agreement will usually then be filed with the court and adopted as a court order. This agreement may not work for anyone else, but it works for you and your family because you had a hand in creating it.