Mediation is becoming more and more popular in divorce cases for several reasons: (1) the cost of litigation is too high, (2) the parties wish to keep their animosity toward each other at a minimum, (3) the anxiety and pressure of fighting over these issues can be stressful, and (4) the courts compel the parties to go to mediation for parenting issues as well as for financial issues during the litigation process. Therefore, if the parties can start out by mediating, they may be able to get divorced quicker and at a lesser expense, both financially and emotionally.
What you must know about mediation is that the mediator is not acting as a judge. He or she is a facilitator and is also not there to give legal advice. Each party should have their own lawyer in the wings that they can call or meet with to find out the legal ramifications of any agreements reached in mediation.
Once understandings are reached, the mediator will draft a Memorandum of Understanding (MOU), which will spell out in writing the tentative agreements reached by the parties on the relevant issues. This MOU is not signed by the parties. The parties then take that MOU to their respective attorneys to review it and to make sure each party understands what they have tentatively agreed to in relation to the law. One of the attorneys will then draft a Marital Settlement Agreement (MSA) which sets forth those agreements, which MSA must be signed in order to be valid.
Sometimes attorneys are present at mediation, if invited, and it may be possible to reach a binding agreement at mediation. If this is the case, then the agreement must be in writing and signed by the parties before mediation comes to a close.
If the parties reach an agreement at mediation and it is not reduced to writing and signed, the court will not enforce it.