Explaining the Two Types of Mediation

Robin M. Mermans, Esq
February 18, 2023

It’s no secret that litigation is expensive, time consuming, and emotionally draining. Unfortunately, it is still the most common way to divorce in the United States. There are some promising numbers though as out-of-court settlement methods like pro se mediation, conventional mediation, and collaborative law are increasing in popularity.

I wish I knew about these different ways to divorce when my ex-husband and I called it quits. During our divorce journey, we really were the perfect couple for an out-of-court settlement. We knew it was over, we wanted what was best for our children, and we didn’t want unnecessary emotional turmoil. Despite this, our litigated divorce was adversarial and tumultuous. After our divorce, I learned about a better way forward for the millions of other couples who are in similar situations. Non-attorney mediation is how ROAD to RESOLUTION got its start in 2011. I was a certified mediator who offered services to help couples get divorced in a way that is non-adversarial. After earning a Juris Doctor and passing the North Carolina Bar and South Carolina Bar, I am now an attorney dedicated to collaborative law. This method is a full-service process that encourages couples to negotiate, communicate, and divorce peacefully. Despite the increased interest in collaborative law, many divorcing couples are still curious about mediation and how the process could work for them. In this blog, I’ll explain the basics of divorce mediation.

Basics of Mediation

A mediator may or may not be an attorney. At ROAD to RESOLUTION, I am an attorney and certified mediator. Either way, the mediator is not able to give legal advice or guidance and by law, mediators are unable to draft the legal documents needed to make the negotiated terms legally binding.  The mediator is also barred from drafting your divorce papers. A couple that works with a mediator utilizes this professional to guide them through the negotiation process. The parties will discuss potentially difficult topics like assets, property division, child custody, and spousal support. Both parties must be able to compromise on the terms of the split. If negotiations fail or the couple can’t come to an agreement, they’ll have to seek an alternate way to come to a resolution, either through attorneys or by themselves.

Two Styles of Mediation

There are two different styles of mediation, pro se and conventional. Conventional mediation is also referred to as caucus mediation.  At our practice, pro se mediation is the type of mediation used most often.

Pro Se Mediation

In this type of mediation, both parties come to the mediation table without an attorney.  Some people choose to hire an attorney to guide them along the way. However, if an attorney is utilized, they will not be physically present during negotiations. I call this a roundtable negotiation. It is fairly literal. During this, both parties will come together at a common table to negotiate the terms of their settlement. They are able to freely discuss their options, needs, and interests. The mediator guides them along the way. Remember, if an attorney is used, they will not be part of this discussion.

While pro se mediation has its benefits, there are some differences that could create more work for divorcing couples after the negotiation process is over. This includes the process of drafting legal documents required to make the negotiated agreement between the parties legally binding. At the conclusion of a pro se mediation, the mediator drafts a mediation summary, which is a summary of the agreed upon terms. One party then takes this summary to an attorney, who will turn it into a legally binding document. When parties choose mediation, they will ultimately have to hire an attorney and pay additional fees.

Conventional Mediation

In this type of mediation, each party is represented by their own attorney. The process starts with everyone together in a room for an introduction. This typically lasts between five to ten minutes. Then, each client and attorney duo go into a separate room. The mediator then goes back and forth between the two rooms to assist in negotiating a settlement.  As a neutral party, the mediator works to help close the gap between the two divergent positions.  At the conclusion of a conventional mediation, one of the party’s attorneys will draft the legally binding documents to effectuate their agreed upon terms.

Collaborative Law

As mentioned previously, Collaborative Law is one of the fastest growing out-of-court settlement options. ROAD to RESOLUTION has seen many people interested in this full-service divorce that can save time and money. To learn more about how collaborative law differs from pro se mediation, check out this blog. I explain how each method is utilized in out-of-court settlements. I also clarify the differences when it comes to representation, legal advice, drafting legal documents, balance of power, professional support, and negotiation assistance.

Interested in learning more about out-of-court settlements?

If you have specific questions about how a collaborative divorce might work in your unique situation, please don’t hesitate to give ROAD to RESOLUTION a call at (980) 260-1600. Our Charlotte-based team of legal experts is ready to help you. Our mission is to offer support and guidance to you and your family.

(Note: This blog is intended to be informational only and shall not be construed as legal advice. For more information, please contact www.ROADtoRESOLUTION.com.)

Robin M. Mermans, Esq
Founder and Principal Attorney

Contact our law firm today to schedule an initial consultation.