Mediation in Family Law Cases

Mediation in family law cases is becoming more and more popular.  A majority of family court judges mandate that parents mediate their case before even scheduling a trial.  The reason for mediation’s popularity is that it allows parties to resolve issues in a less adversarial setting than a courtroom, and because it is so cost effective. 

What is Mediation in Family Law Cases?

Mediation in family law cases (divorce, separation, paternity, child custody) typically involves the parties—without attorneys—meeting with an independent mediator, either court-appointed or retained by the parties.  Family-law mediators are typically other family law attorneys or retired judges, all of whom have received specialized training in mediating domestic matters.  The ultimate mediation goal is for the parties to walk out with an agreement on all issues.  But of course that is not always the case.  Even if agreement isn’t reached on all issues, the process still can be extremely effective in narrowing down and identifying the parties’ actual points of contention.

How to Prepare for Mediation in Family Law Cases

Adequately preparing for mediation is extremely important.  Like many aspects of litigation, a solid preparation can pay dividends down the road.  The client and counsel should pinpoint the client’s main goals, but also identify aspects of the case where the client is willing to agree with the other party’s position.  The client’s understanding that no progress is made through a “my way or the highway” negotiating stance is key to making mediation actually bear fruit.  But it is also critical for clients to understand that his or her position should not be entirely compromised for the sake of leaving mediation with an agreement.  Not all mediations will completely resolve cases, though prepared parties will greatly improve the chance of a global resolution on all issues. 

Mediation Styles

All family law mediators have their own approach to mediation.  Some will have each party in different rooms and bounce back-and-forth between the two rooms.  Other mediators will have each party in the same room together as issues are discussed and negotiations occur.  And yet some mediators will engage in a combination of the previous two approaches.  The combination approach may take the form of meeting with each party individually to get a sense of that party’s goals, and then bringing the parties together for an open discussion about were the common ground lies.  On occasion, a mediator will ask for the parties’ attorneys to prepare mediation statements.  Those mediation statements allow the attorneys to set forth their client’s position, while also advocating why that position is the preferred outcome to the case.      

Advantages of Mediation in Family Law Cases

No discussion of mediation in family law cases is complete without noting its distinct advantages.  First, it allows parties to come to an agreement on their own terms, which is always more preferable than a judge or two attorneys hammering out a situation.  Second, and as mentioned above, mediation is extremely cost effective.  Parties can pay for a couple hours with a mediator to resolve the case instead of paying for many hours of their attorneys’ time to engage in back-and-forth negotiations.  The third, and often times most overlooked aspect of mediation, is that it helps maintain a civil co-parenting relationship.  There is no such thing as cheap litigation.  And in protracted litigation, things are said and subjects are breached that can severely damage the co-parenting relationship. 

Separating or divorcing parties, or those beginning a paternity case, seem to disregard the fact that they will have to co-parent together for many years to come.  Reaching an agreement through mediation and avoiding costly and potentially relationship destroying litigation is a great way to resolve a family law case.  Keep in mind a mediation agreement is not truly an agreement until the Court reviews it and accepts anything pertaining to the children as being in their best interests.  But if two parents have come together to reach an agreement on what they believe is in their children’s best interest, most Courts will not disturb that agreement.     

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