What to know before a divorce mediation session

You arrive at the family court, wait, and enter the mediation room when your case number is called. It is set up like a meeting room, where you sit across a large table from the judge or mediators, and there are usually two mediators. At first, both sides' basic positions are checked together, and then each side is often called in separately to narrow down the terms.

It is common for it not to end in one session. If asset records have not all come in or matters concerning the children remain, the next session is scheduled after a family investigation (가사조사) or asset inquiry (재산조회).

Arrive a little earlier than the time on the notice, and be sure to bring your ID. Several cases may be scheduled for the same time slot, so the wait can be long. If it is hard to wait in the same space as your spouse, let the court know in advance.

The judge and mediators are more interested in what you want than in how much your spouse was at fault. Practice answering each question briefly with the outcome you want and the reason.

• Whether both of you agree to divorce
• What you think of the reasons for the breakdown your spouse gives, and how much compensation for emotional distress you want
• Whether any assets are missing, and what division ratio you think is fair
• Who will raise the children, and how child support and visitation will work

Mediation (조정) is a place where both sides give a little. Decide in advance, in numbers, what you must keep, what you can concede, and the bottom line below which you will not sign. If you sign on the spot because you are swept along by the atmosphere or want to finish today, it is very hard to undo later.

Things said in mediation sometimes remain in the record and become an issue in a later lawsuit. Be careful not to make sweeping statements about the children or about fault in the heat of the moment.

It is easier to explain if you bring material supporting your numbers summarized on one page, such as a list of assets, loan balances and a child support calculation. Calculate the child support amount in advance using the Child Support Guidelines (양육비 산정기준표).

A mediation record (조정조서) has the same effect as a judicial settlement (Family Litigation Act (가사소송법) Article 59), so it is enforced exactly as written. Look especially carefully at the following wording.

Read the draft record aloud once and check that the numbers and dates match what you have in mind. If any wording is ambiguous, ask for it to be corrected right then.

• By when and to which account money will be paid, and what happens if it is late
• The date real estate will be transferred, who will repay the loan, and what happens if the bank refuses to let the loan be taken over
• The child support amount, the monthly payment date, and until when it will be paid
• The frequency, times and places of visitation, whether the child stays overnight, and how vacations will work
• A clause stating that neither side will make any further claims regarding property (this may block claims even if hidden assets come to light later)

If mediation fails, the lawsuit is treated as filed when mediation was requested, and the case moves to litigation (Civil Conciliation Act (민사조정법) Article 36). You do not need to write a new complaint, but if you receive a correction order (보정명령) to pay the shortfall in stamp fees, you must pay it before the deadline.

The court may also issue a decision in lieu of mediation (조정을 갈음하는 결정). If no objection is filed within 2 weeks of being served with the original copy of the decision, it becomes final and has the same effect as mediation; if an objection is filed, the entire decision loses its effect and the case goes to litigation (Family Litigation Act Article 49; Civil Conciliation Act Article 34).

Your preparation is not wasted just because mediation failed. The issues and the other side's positions revealed during mediation tell you what needs to be proved in the lawsuit that follows.

In principle, you must attend mediation sessions in person, and if there are special circumstances, only your lawyer may attend with permission (Family Litigation Act Article 7). If the person who applied for mediation fails to attend twice, the application is treated as withdrawn (Civil Conciliation Act Article 31), so be sure to keep the dates.

In cases involving children, you may be told to attend parenting education or counseling before mediation, so read the notice carefully.

Even if your spouse keeps not showing up, that does not mean you cannot divorce. The court can issue a decision in lieu of mediation, or end mediation and send the case to litigation.

At Jisan Law, we decide with you before mediation the bottom line you will accept and the wording of the record, and we attend the mediation session with you to check the wording. If you have received notice of a mediation session, contact us through the chat on this page.