Family Law Mediation
The divorce process, even for couples that desire reach an agreement, can be long and difficult. Protracted negotiations, exchanges of information, delays in communication, and the overall process can create frustration and expense. Family law mediation is a way to bring together those elements in a concentrated format and, with the assistance of a trained professional, can result in a comprehensive agreement in even the most difficult cases.
The primary advantage with mediation is simple; it allows the couple to maintain control over the outcome of their dissolution. When a case reaches traditional end, a judge hears all the relevant evidence, listens to witnesses, weighs the value and credibility of evidence and, ultimately, makes a decision based on the facts as he or she is aware of them. Frequently, with a complicated case, the court may take weeks or even months to issue a final ruling, leaving the parties and children in limbo during that time. As importantly, the ruling that is issued is not required to conform to the requests of either party but rather with the law and other factors as the judge applies them. Therefore, it is not uncommon that each party is dissatisfied with the results of a judge’s ruling despite the investment of time and resources to present their side of the case in the best manner possible. Upon entering the court room, they have lost control of the end result. No matter how skilled or capable their advocates, there can be no guarantee as to outcome. In mediation, the participants maintain total control over the final result.
SOLUTIONS NOT POSITIONS
At mediation, each party provides the mediator with an outline of the situation, their impressions of it, their priorities, and the results they are looking to achieve. A skilled mediator can recognize where the parties, despite their differences, have common ground and common interests and can begin to help the parties recognize this commonality primarily, spreading it to the other areas in effort to come up with solutions. A trial is about positions asserted to cause a judge to decide the outcome in the favor of one side or the other. A mediation is about finding solutions by working with both parties so that they can mutually determine an outcome to benefit the situation overall. A most particular element of this is the ability to customize plans involving the division of time with children and the sharing of responsibility for their activities and individual needs. These are difficult for a court to understand and implement based on the information they receive, especially if the information is contradictory. Given the volume of cases before a judge, it can be difficult not to fall into patterns based on guidelines and other general concepts that do not recognize or consider the specific needs of a particular family. In mediation, so long as the agreement is not directly contrary to a statute, the parties are free to deviate from those norms using times and locations for parenting time, working through unusual work schedules or special educational needs, and looking towards the big picture for a plan that will serve all the parties going forward rather than just being an immediate resolution.
HOW DOES IT WORK?
Once the mediator has an idea where both parties stand and what the primary issues are, he or she acts as a go-between, communicating proposals and information between the parties while inviting each party to think creatively and work towards solutions rather than galvanizing positions. Frequently, these solutions involve determinations of simple items such as time or dates or the exchange of certain holidays for others; in more complicated situations, a comprehensive special education plan, agreements as to alternate caregivers/education providers and a year-round schedule including scheduled activities can be worked through, week by week or even day by day in a mediation.
Perhaps the single most lasting effect of resolving a divorce through mediation is the increased probability for all concerned to move forward rather than being weighted so heavily by the past. Courtrooms provide an excellent forge to galvanize bad feelings between the parties. Due to the nature of the court system, each party will spend a substantial portion of a hearing presenting testimony designed to convince the judge that the other parent’s flaws should result in the Court to choosing who is the “better” parent and adopt their plan for custody and parenting. The bad feelings created by that very process can last forever in some cases. With mediation, however, there is no need for “proof” of that nature to be voiced in a public setting directly in front of the other parent. By coming to an agreement, the parties have spared the majority of the injured feelings and direct attacks on their character almost certain to come out in the courtroom. Because it is their agreement, directed by them and punctuated by the details of their lives and their children’s lives, the likelihood that each party will abide the terms and the spirit of the terms is increased. Further, there is something else very significant for parties raising children to see going forward from such an agreement – that is, they can actually agree. Many difficult cases walking in the door to mediation have walked out with an agreement later that day.
Mediation can be appropriate at many phases of the divorce process. In fact, mediation agreements will often require additional mediation to resolve future disputes before putting them before a court. If you become involved in a divorce action, consider mediation part of the possibilities for resolution; you might find that the results are less expensive and considerably less painful than going to Court.
Written by Robert Shrive, Hollingsworth & Zivitz, P.C.