This concise and clear glossary of common divorce mediation terms has been put together to help you educate yourself and better understand the divorce mediation process. Knowing some of the basic terminology involved in divorce mediation helps orient you as you go through the process.
A
Action Short for cause of action. It is a lawsuit or proceeding in a court of law.
Affidavit A written statement signed under oath.
Arbitration A formal process in which the dispute is referred to a neutral third party. The spouses must agree in advance to accept the arbitrator’s decision.
Arbitration A process where the parties to a case submit their dispute for decision to one or more neutrals who are not judges. The parties make presentations of facts and law to the arbitrator(s) under relaxed rules of evidence and procedure. A decision in arbitration, called an award, can be binding on the parties, or can be non-binding. In many ways, arbitration is the opposite of mediation, as a mediator makes no decision, while an arbitrator does.
C
Caucus Those parts of a mediation where the mediator is talking with only one side of the case at a time. Caucuses are used to privately discuss in greater detail the interests and concerns of that side and to generate new settlement proposals that the mediator can communicate to the other parties.
Child Custody The court’s determination of who will be the child’s primary caregiver and make decisions for the child. Physical custody determines where the child will live and legal custody determines who will make decisions for the child’s welfare.
Child Support Court-ordered regular payments made by a non-custodial parent to the custodial parent to help cover the child’s expenses.
Contested Divorce An adversarial divorce proceeding in which the spouses cannot agree to a separation agreement.
Custodial Parent The parent who has physical custody of the child. This parent lives with the child and is in charge of making the day-to-day parenting decisions.
D
Deposition A form of discovery that consists of oral questioning outside the courtroom.
Discovery Obtainment of information from the other spouse or from others.
Dismissal without prejudice Closing a case and removing it from the court docket. Without prejudice provides the legal opportunity to bring the same claims back to court later on.
Dismissal with prejudice Closing a case and removing it from the court docket. Prejudice creates a legal barrier to ever bringing the same claims back to court later.
E
Emancipation Termination of child support payments when the child reaches a certain age.
G
Guardian ad Litem (GAL) A person, usually a lawyer or a mental health professional, appointed by the Court to conduct an investigation and issue a recommendation on child custody and visitation.
I
Income Withholding Order Arrangement in which child support is deducted from the parent’s paycheck and sent to the Family Support Payment Center, which in turn sends it on to the custodial parent.
Interrogatory A form of discovery which consists of questions that the other side must answer in writing.
Introduction The first stage of a mediation where the mediator introduces themselves, asks the parties and attorneys to introduce themselves and explains the basic mediation process to everyone. The introduction occurs in the first joint session of the mediation. The introduction also establishes the mediator’s ground rules and expectations for the mediation procedure, including such basics as only one person talks at a time, no interruptions, the mediator has the floor when needed, etc.
J
Joint Legal Custody Arrangement in which the decision-making responsibility is shared by both parents.
Joint Physical Custody Arrangement in which children spend considerable periods of time, perhaps several weeks or months of each year, alternately with each parent.
Joint session Any part of a mediation where the mediator, all parties, and the attorneys are present in the same conference room at the same time.
L
Legal Custody The legal right to make major decisions about issues such as education, health, medical care, emotional development, and religion.
Litigation The process of filing and pursuing a case in court through and including a trial if necessary. Litigation can be relatively short, such as an eviction case, or it can be very lengthy, such as a major contract or personal injury case. Mediation can be used before litigation starts or during litigation in court.
M
Maintenance Court-ordered spousal support payments from one party to another, often to enable the recipient spouse to become financially independent.
Mediation Mediation is a process of guided negotiations. A neutral individual, called a mediator, works with the parties to a pending case in a discussion of their problem. The talks are an effort to resolve the dispute by mutual agreement before it reaches a contested hearing or trial. The mediator serves as a discussion leader to help the participants negotiate more efficiently, and, hopefully, reach an agreement sooner than they could on their own. The mediator has no authority to decide and cannot force the parties to settle.
Mediation conference A meeting of the mediator, the parties, and the parties’ attorneys to discuss and try to resolve a dispute or pending case. Mediation occurs in a conference or discussion format and is not conducted as a hearing or trial.
Mediator A mediator is an independent unbiased trained neutral, who works like a diplomat to help people settle disputes. The mediator can serve as a catalyst or go-between for communications aimed at settlement. However, a mediator cannot give legal advice to either side.
Motion A written request made to the Court by an attorney, for example, a request to postpone a court date.
N
Negotiation A direct discussion process seeking the end of a dispute through mutual agreement. Parties and/or their attorneys communicate proposals for resolution and engage in back-and-forth discussions until satisfactory terms are reached (often involving an agreed payment), or a decision is made to go to trial. Negotiation can be used before or after mediation, and before or after litigation starts.
Non-custodial parent The parent who does not have physical custody of the child, but is usually assigned visiting rights.
P
Petition for Dissolution of Marriage The first document filed with the clerk of court in an action for divorce. The petition sets forth the facts on which the relief is based. If the Petitioner alleges that the marriage is not irretrievably broken, the document filed is a Petition for Legal Separation.
Physical Custody Legal right of an adult to live with the child as the primary caregiver.
Petitioner The person who filed the petition initiating a divorce.
Pre-mediation statement A brief summary of the facts of a case or dispute submitted in advance of a mediation to bring the mediator up to speed on the circumstances.
Pretrial Conference A meeting of all parties and counsel with the trial judge, sometimes held in the judge’s chambers.
Pre-suit mediation Using the services of a mediator to try to resolve a dispute before a case is filed in court. Pre-suit mediation occurs by agreement of the parties.
Q
QDRO Qualified Domestic Relations Order
R
Respondent The responding party to a divorce; the party who did not file the petition initiating the divorce.
Restraining Order A temporary court order prohibiting a party from certain activities. Restraining orders often are issued to protect assets and to protect against domestic violence.
S
Service The legal process of informing the other side that a complaint or motion has been filed and providing them with a copy of the papers.
Settlement Conference or Status Conference A meeting with a judge or commissioner who will preside over a trial to discuss the settlement of a pending case before a trial is scheduled.
Subpoena A court order requiring someone to appear in court or deliver documents.
Supervised Visitation Visits of the child with the non-custodial parent conducted under the supervision of a responsible adult in order to assure the child’s safety or well-being.
T
Trial A formal proceeding before a judge in which each party’s attorney presents his or her case, supported by testimony from witnesses or other evidence.
U
Uncontested Divorce A divorce proceeding in which the spouses agree to all matters and submit their settlement to the court for approval.
V
Visitation The right of the non-custodial parent to spend time with the child. This may mean that the child spends several hours, weekends, or some vacation time with that parent.
We hope that you find this terminology helpful in your divorce mediation. If your attorney or mediator uses legalese that you don’t understand, speak with him or her and ask for further explanation so you can make educated and informed decisions during your divorce mediation. Should you need the assistance of an experienced divorce mediator, know that we are here to help and ready to speak with you.