WHAT HAPPENS AFTER MEDIATION?
Congratulations! You just finished your mediation session and reached an agreement. You may feel relieved that the pressure is over or excited that you have found a way to move forward in your life without the stress over litigation. You may feel regretful that you didn’t get exactly what you were looking for when you first met with your attorney or filed the petition. You may be wondering “ What if….”
What happens next? It depends on the type of case. This post focuses on mediation in family law matters. In future posts, I’ll address civil cases and then criminal matters.
ENTRY OF AN ORDER. The court will usually include your agreement in an order. However, until the judge signs that order, the court has not adopted your agreement. If the judge already entered a temporary order or an order in a previous case, you’ll need to continue to follow that order until the new one is entered.
GOING TO COURT. If you are required to go to court, the hearing to review the agreement is usually very short. In cases involving children in West Virginia, once the judge agrees that the agreement is in the best interest of the children, he or she will incorporate it in the order. In other jurisdictions, the agreement may be binding as soon as both parties sign it, and it may be incorporated in the order without parties coming to court. Check with an attorney, the clerk’s office or state bar association to determine whether or not you will need to attend court and what the effect of a mediated agreement is in your case.
HOW TO ENFORCE THE AGREEMENT. The best way to enforce the agreement is to keep working on it! I usually recommend that after separation, parents meet at least monthly, in a public place and without the children or third parties present, to talk about the children and the parenting plan. If there is a problem, the parents can address it quickly. If the parenting plan needs to be changed, the parents can talk about it before it becomes a crisis.
MINOR CHANGES TO THE AGREEMENT. Sometimes parenting plans include language that allows you to make minor changes without going back to court. For example, if your agreement says that the mother will pick the child up from school unless otherwise agreed to in writing by the parties, you can write a supplement to the agreement and make the change. However, if you need to make a change that is not included in the plan, the court must approve the change in a modification action.
HOW TO MODIFY THE PARENTING PLAN--
REWRITE THE PLAN. The first step is to rewrite your parenting plan with modifications.
MEDIATION. If you can’t agree on the best modifications—attend mediation. If you and the other party don’t agree on a change to the plan, you should attend mediation together to resolve the problem. Remember: you don’t have to agree on the terms of the agreement to attend mediation.
COLLABORATIVE LAW. When mediation doesn’t work. When you fail to reach an agreement in mediation, you may need to contact an attorney. Our office recommends that when parents cannot reach an agreement through mediation, that they work with collaborative law to create the best outcome for their children. In collaborative processes, you may be working with a divorce coach or child specialist, in addition to a specially trained lawyer, to be sure that your children’s welfare is addressed as quickly and as peacefully as possible.
FILING WITH THE COURT. File the paperwork. Once you have drafted an agreement, whether you have created it on your own, with a mediator, or with your attorneys, you will apply to have the judge accept your changes. The process for applying for that change in West Virginia can be found here.
Remember, you must continue to follow any existing order until the judge signs a new order. During that time, we recommend that you keep up with the monthly meetings and work hard to make the agreement be the best parenting plan possible for your children. Contact us to learn more about our mediation services and representation in collaborative law matters.