In family law cases, clients often wonder what is mediation and if they should do it. Mediation is not binding on you, and typically a neutral mediator will sit down with both parties in an attempt to reach an agreement. When you “mediate” you are bringing out issues you would like to resolve. Both parties typically have issues that need to be worked out, things like, how old should our daughter be before we allow her a cell phone? Or who is going to keep the house? Should we sell it or will one of you refinance it?
Mediation is always a good idea, especially in family law cases. Studies show that mediated agreements are ones that both parties will generally follow since they have agreed to the terms. Unlike a trial or hearing before the court, you have a lot of control over the outcome of your case when you mediate it.
When Is Mediation Not a Good Idea?
Most clients benefit from some mediation, even if they do not reach a full agreement. There are situations however when I will not allow mediation to occur. If one party is a victim of domestic violence, then putting them in the same room together is not a good idea. Also, if the client is intimidated by the other party or the other party is very aggressive, then it is not a good idea.
I once represented a man who came back after only two hours with a mediated agreement. I reviewed the agreement and was wondering what went wrong and how my client could agree to take only 20% of the marital estate? I called the mediator and was told that he agreed to it, so they wrapped up the session and wrote up the agreement. I told the mediator that there would be no agreement, and we would see the other side in court. If a client will simply agree to everything the other side says, then that is not mediation.
7 Things You Need to Know About Mediation
If you are facing or involved in a family law or divorce case there are some important things to keep in mind.
1. Mediation Will Save You Money
Both parties will split the cost of the mediator. Instead of each side paying their lawyer to negotiate an agreement at the rate of a couple of hundred dollars apiece, the parties can share in the cost of someone to do mediation. It can also be much quicker than going to the judge. It is astounding how much time it takes to be heard in court. Sometimes months go by before you can get a hearing before the court. In mediation, you can sit down a couple of times a week to resolve your matters much quicker which can save you money.
2. Be Ready and Willing to Compromise
To use mediation effectively, both sides have to be ready to compromise. Even if you go to trial with the judge, you are not getting everything you want. Know what you want, but be open to compromise. If your partner has a good argument for their position, listen to it and see if it makes sense. I always tell my clients that if they can live with it, then agree to it. There is no reason to make every issue a war. There is a middle ground, but you have to be willing to compromise.
3. Both Parties Need to Be Emotionally Ready
You also need to be somewhat in the same spot emotionally. If you have been planning to divorce for two years and your spouse had no idea it was coming, it will take a while before they are ready to discuss certain aspects of the case. Some people might still be in the grieving part of the process and although you have moved on, they might not be in the same place emotionally. Sometimes mediation can get started and then a break needs to be taken so the one party can be emotionally ready for the next step.
4. Mediation is a Good Option During the Pandemic
With the COVID-19 pandemic still underway, never has mediation been easier. Mediators are still hard at work through Zoom, which makes the scheduling so much easier. Mediators are able to schedule more events during the week because many people have more availability.
5. Don’t Sign Anything Until Your Lawyer Has Reviewed and Approved It
In your litigation case, you should never sign anything without your family law attorney reviewing it first. You can agree, and the mediator can write up the agreement, but never sign anything until your lawyer has reviewed it.
6. Children May Be Involved in Mediation
Sometimes, yes. If a child is old enough, there are times when it makes sense to bring a child into the mediation. As children become teenagers, any parent will tell you that the child does not want to spend a full weekend with either parent. Knowing that and understanding that will make it easier on everyone. Sometimes a child can make their feelings known about certain subjects like their schedule and it can move the mediation along by involving children that are mature enough to handle the process.
7. Make Sure You Pick a Family Law Mediator
Mediators can work in many different fields and areas of law. They are trained to listen and to get people talking, and then they use various techniques to make sure each side gets “a little something” to get to an agreement. But in the field of family law, some mediated agreements will not be accepted by the court. A long time ago I received a mediated agreement where the father agreed not to visit the children and the mother agreed not to take any child support. Aside from being against public policy ensuring that the judge would never sign it, this was a horrible result for the children. A family law mediator would know that an agreement of this type would not be accepted by the court even if both parties were satisfied with it.
Is Mediation Right for Your Family Law Case?
Mediation in family law cases can be a time and money saver. Consider mediation over going into court to fight about everything. You will be surprised at how much faster the process is and how happy you will be to know that you were able to work out an agreement with the other parent.