I have been a Family Law litigator and mediator for over thirty years; and I think that most experienced Family Law attorneys will agree that, in the vast majority of cases, mediation is the more peaceful, less expensive, alternative.
Litigation is an adversarial battle. It is designed to be that way. The emphasis is on defeating the other party. And the process is long and often expensive. A year can pass before the trial takes place. In the end, the judge – someone who is a stranger to the parties – has the power to make enormous decisions that will affect the lives of the parents and children for years to come. Their futures are literally in the hands of the judge. There will be a winner, and a loser, but often neither party will be happy with the final result.
Mediation is different. It is collaborative and communicative. And in mediation the parties are in control of the process. They are in charge of negotiating the terms of their own agreement, with the assistance of a qualified mediator who is experienced in helping parties come together and find common ground. As a result, people who participate in mediation are more likely to be satisfied with the outcome.
The beauty of Mediation is that it is voluntary, confidential, and non-binding.
Voluntary: Nobody is forced to be there, and either party can terminate the session at any time. If a party is uncomfortable with the process, or the mediator, or the positions the other party is taking, he or she can end the session and leave.
Confidential: Nothing that is said in the mediation can be used in court. The mediator cannot be subpoenaed to testify in court. Thus, the parties are free to express themselves without fear that their negotiating positions, or anything they say, will be used against them in court. Communication is often the key to being able to reach a fair agreement.
Non-Binding: The mediator is simply a neutral facilitator, someone who helps the parties communicate and negotiate their own settlement. Unlike a judge, the mediator has no power to make a ruling or a legal decision, so you don’t have to worry about the other party influencing the mediator or convincing the mediator to take his or her side. The mediator has no power to tell you what will be.
Typical Outcomes – In litigation, most cases are settled – but in many instances, the settlement does not take place until right before trial; and in the meantime, the parties have gone through a year of turmoil and have spent many thousands of dollars on attorneys and litigation expenses. In mediation, the odds of settling a case are surprisingly high. I believe it is because, in mediation, the parties are able to communicate with the help of an expert facilitator; and when a dispute or disagreement arises, they can deal with the problem right then and there. I have found that people tend to be much happier with a mediated settlement than with a judge’s ruling, because this is “their” agreement. They negotiated it themselves, with the help of the mediator. It was not imposed upon them by a judge. Going through the peaceful process of Mediation can help the parties settle the matter sooner, and save both time and a great deal of money in the bargain.
How an Agreement is Finalized – Once the parties have reached an agreement, the mediator will usually prepare a “Memorandum of Understanding,” setting forth the specific terms. This is a non-binding agreement. It means that you still have time to think about whether the terms of the agreement are truly acceptable to you. Neither party can be held to the terms of a mediated settlement agreement unless they both sign and acknowledge that the settlement is a binding contract. This provides another layer of protection for you.
There are a number of different ways that ways parties can handle mediation:
With, or without, attorneys – The parties can mediate without attorneys present; or they can have their attorneys by their side, so that they can obtain advice and guidance during the session, and not be intimidated or coerced into coming to an agreement;
Face-toFace, or by Caucus – The parties can all meet together with the mediator around a table in a conference room; or, of one or both are uncomfortable with face-to-face communication, then they can mediate by “caucus,” with each party sitting in a different room – and the mediator shuttling back and forth.
Each of these options has its pros and cons, but any of them can be very effective.
The goal of mediation is to negotiate a fair divorce settlement. Your choice will depend on which option you think will give you the best chance of success.
Deciding whether to have attorneys present in the mediation will depend on (1) your comfort level; (2) how you think the other party will react to having attorneys in the session (i.e., will it make him or her more, or less, likely to come to an agreement?); and (3) whether the lawyers’ demeanor would enhance the chances of negotiating a settlement, or whether their attitude and posturing might make things more difficult – for example, an attorney who is contentious or unreasonable can sabotage a mediation, even when the parties themselves are trying to be fair.
Many mediators prefer not to have attorneys present in the session. But, on the other hand, keep in mind that in some cases, mediation fails because, without a lawyer by her or his side, a party may not feel confident enough to agree to a final settlement. In other cases, a person might agree to a bad deal in mediation because he or she begins to feel weak, and just gives in. Therefore, whether you wish to have your attorney present is a personal decision. You need to decide what would be best for you.
Whichever option you choose, you can (and should) have your attorney work with you in advance,, so that you will be able to walk into your mediation session confident and well-prepared. You should approach mediation as if it were a business negotiation (even if it involves custody and parenting time issues). That way, you will be better able to think rationally and keep your composure.
Mediation should be your first option. If it doesn’t work, you’ll still be able to have your day in court. But in most cases, mediation it is quicker and far less expensive than litigation; and it has a high rate of success. It is truly the peaceful path.
Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with custody and parenting issues in Family Court. If you are in need of a consultation regarding divorce, child custody, or any other area of Family Law, please do not hesitate to contact us by telephone (602-383-3610) or by email through our website. We look forward to hearing from you.