An Introduction to Family and Divorce Mediation

A courtroom is in many respects a strange place in which to settle domestic relations disputes such as divorce. Our highly respected adversarial court system emphasizes bringing out the truth and then rewarding the victor with the spoils. Some divorce cases do indeed become entirely about money, and a few do present novel legal issues that are resolved best under our traditional American court system in which the two adversarial parties present their sides of the dispute to inform and persuade the judge, the finder of fact, who then renders conclusions of law in deciding the issue.

But for some three decades the no-fault divorce concept that swept the country has generally required the marital community “pot” to be equally or equitably divided. The majority of family law “disputes” are more about bookkeeping than legal issues. Yet, the trial procedures of civil and criminal litigation are still applied. Such a highly antagonistic setting sometimes encourages a few opposing attorneys to inflame the emotions of already stressed parties by making charges against the other and engaging in personal attacks. Clearly, child custody and visitation disputes are quite out of place in a traditional courtroom.

Mediation is an important alternative, with considerable appeal and merit. Why should you pay two lawyers a lot of your money to fight each other in court? Instead, try to work out your problems as two adults, with the help of a neutral professional. If you can be part of the solution rather than part of the problem, you’ll reduce the friction between the two of you.

Do not fail to take into account the significant risk inherent in all litigation. You are asking the judge, who is a stranger to all the facts of your case, to answer questions—such as who should get which automobile, how do we divide the retirement plan and how shall we share the responsibility for raising our children—which you are already much better equipped to decide. While your attorneys are obligated to inform the judge, they may not be able to present “all the facts.” The judge might decide your case in a way that satisfies neither or you, or the judge may make a mistake.

Mediation is a substitute for courtroom trials of disputes. It is a structured process for clients with, quite often, their lawyers to overcome obstacles and resolve all the questions that must be decided in a divorce. If you choose this approach, the court’s only involvement will be to approve the agreement that you have worked out in mediation. Many couples have successfully used mediation to tailor a settlement agreement to their particular needs. Mediation provides a direct opportunity to be creative. You are likely to save money, and the chances are greater that you will remain on speaking terms with your ex-spouse.

Mediation is not appropriate in a case in which domestic violence is present or is an issue. Likewise, if suspected child abuse is an issue then mediation is not an option.

The mediators in your community may not be licensed. In many states there are no educational or experience standards to be met before a person can represent himself or herself as a mediator. Look for mediators who meet established but optional standards of respected legal entities—courts or professional associations. Typically, mediators are experienced family law attorneys, charging their usual hourly rate. They will help you resolve everything that must be done and assist in having the necessary papers prepared and filed with the court for a judgment setting forth your agreement.

The mediator is neutral. He or she does not represent either of you. The mediator’s role is to help you settle your case together. You and your spouse will meet in the mediator’s office, usually using a small conference room. You may each wisely choose to have an attorney work with you as a partner in laying out the facts, your proposals for settlement and negotiating the final terms.

Mediation is not for everyone. Your personalities must be conducive to mediation for it to be successful. First, both of you must be motivated to settle the issues. Second, and especially if you decide to mediate without an attorney representing you in the actual mediation sessions, you should be fairly well matched in financial and negotiating abilities. Third, you each must trust the other enough to work out arrangements for property, children and support. These ingredients are not always present, although spouses may delude themselves that they are. Mediation is a sensible, businesslike approach to dispute resolution. Many times there is nothing sensible or businesslike about the spouses involved in a divorce.

Mediation is not the only way to take care of the business at hand and avoid an expensive and risky court trial. Competent family law attorneys settle the majority of their cases without going to court, often reaching the same type of reasoned, moderate-cost result. Clearly, however, mediation presents a superior opportunity for reasoned, moderate-cost divorce resolutions because it stresses working together to reach mutually satisfactory results.

You will have to decide for yourself whether mediation is right for you, and for your case. If mediation appears to be worth a try after reading this chapter, approach it with your eyes wide open and your expectations realistic. Pick a mediator who makes a commitment to advise you on the rules and with whom you are comfortable. Mediation in a proper case in which the parties are receptive is more likely than litigation to produce satisfactory results. And, unsatisfactory mediation between unrepresented parties might well have been successful if attorneys had been involved to prevent mistakes.