MEDIATION IN FAMILY LAW CASES

Q:        Why is mediation in a family law case so much more complex than mediation in other legal actions, such as real estate law?

Family law cases are often complex disputes involving many areas of the law.  It is not unusual for a party to have tax, real estate, bankruptcy and criminal issues in addition to disagreements about custody and child support.  Another reason for the complexity in family law cases is that it is very common for issues, such as child support to go on for many years.   Most families will move at least once every five years.  With a move and children the amount of child support can change and so can the parenting plan.  When cases are mediated the parties will have an opportunity to plan for future contingencies to a far greater extent than in the courtroom.

Q:        Is mediation appropriate for every family court case?

Not every case will benefit from mediation.    It is important to decide whether your case is appropriate for mediation.  Although many judges have a “rule” that they will not hear a case unless the case is first mediated,  it is not uncommon for judges to have an “exception” to their rule.  In cases where there is domestic violence, mediation is unlikely to be effective and can be potential dangerous for the victim.

In jurisdictions where you have a choice to mediate, it is important to discuss this issue with your attorney.  You need to know if your spouse wants to reach an agreement.  Does your spouse have some motivation for wanting to settle quickly?  Does your spouse want to prolong the divorce for a monetary gain?  Is there a downside for either spouse if the case is concluded with mediation and not a trial?  There are some clients that for whatever reason they want to “have a judge hear their side of the story”, so that they can humiliate their spouse.  There are other clients who do not want to part with “their” assets unless a judge tells order them to do it.  In cases where it is apparent that one side will not settle, it is better to plan for a prolonged trial and budget for it.

Q:        Is there a “right” or a “wrong” time for mediation?

It is important that both sides have sufficient knowledge of the financial aspects of the marriage.  Each party should have whatever documents they need from the other side well in advance of the mediation.  If custody is an issue and there is a guardian ad litem will be writing a report, the parties should have sufficient time to “digest” the report before mediating.  It is unrealistic to think that mediation will be successful if one party is surprised by the guardian’s recommendation.  Emotions need to be put aside enough to participate in mediation.  Sometimes it is extremely effective to have a court date set close to the mediation date so that the parties know that if they do not reach an agreement, there will be substantial legal fees to try the case.  However, a close court date can also be a motivating factor not to settle.  You know your spouse better than anyone else involved in the litigation and can make the best decision as to whether mediation is likely to succeed.

Q: What are the qualifications of a mediator?

Mediators take special courses to be qualified as a mediator. In addition to the courses, many courts require that mediators observe several experienced mediators conduct mediations.  Each state and some local courts provide their own rules concerning who may be qualified as a mediator.  Mediators can be practicing attorneys, retired judges or other professionals, such as therapists or accountants.  The qualifications vary greatly.

Generally, it is very helpful to have an experienced professional who has mediated many cases similar to yours.  For instance, if your case involve a small business, it would be very helpful to have someone with a strong financial background mediating your case.

Q:   How are Mediators chosen?     

It is common for courts to have a list of mediators who have complied with their specific qualifications.  If you and your spouse or ex agree (or your attorneys) on a mediator that is not on the “list” for your county, it is possible to request that particular mediator be exempt from your local rules.  If you and your ex (or your attorneys) have not agreed on a mediator, the judge will assign the mediator.

Do you have legal questions? We’re here to help your family. Call us at 770-333-1620.

Preparing for Mediation

As I discussed in my last blog post, there are many advantages to successfully mediating a divorce or family law case rather than taking it to trial. Here, I present some additional questions, to give a more detailed picture of how mediation can benefit divorcing couples and parties with a family law dispute.

Q:        Where does Mediation fit in the process of getting my divorce?

In theory, when an individual desires to get a divorce, he/she will hire the best lawyer who will be able to present the client’s reasons for the divorce and a division of assets and liabilities that will be “fair” to both parties.  If there are children, the attorney will present a parenting plan which will serve the children’s best interests.

A judge in a divorce trial should also strive for fairness. Unfortunately, because most judges have far too many cases to decide, the reality is that fairness can be elusive. Our court system is overburdened and under-funded.  Judges have a lot of competing cases, and criminal cases usually have a higher priority than civil cases.  It is not that the judges are not willing to hear your case and make a decision.  They simply have to “move the calendar along”, and do the best they can do for as many litigants as possible.

The result is that the when the judge does not have the time to speak with the parties for as long as necessary to render a “fair” decision, neither side will feel that they were given the chance to tell the judge what they needed to and they did not get their “day “in court.”  In addition, both parties (and the children, if there are any) will have to live with the judge’s decision for a long time.  It will also be very expensive as well as time consuming to have the judge hear the case.

At Mediation, you will have a chance to tell the mediator about your marriage, your children and anything else that may impact on the divorce.  If you are not comfortable speaking in front of your spouse, mediation can be conducted in separate rooms.  If you prefer to have your lawyer speak to  the Mediator on your behalf, that is fine too.

Most mediators do not require attorneys to attend the mediation, however, if you can afford it that is the best practice.  Even if the Mediator is a lawyer, they are not able to give legal advice.

Q:        Is there a “Magic Formula” for a Successful Mediation?

The most important premise of mediation is that both parties are willing to participate in good faith to resolve their disputes. An experienced mediator will continue to work with the parties as long as it takes to reach a settlement.  However, there is also a question of timing for each party.  Different people take different amounts of time to come to the point where they want to settle their case.  Although it is very discouraging to participate in mediation for several hours without reaching a solution, keep in mind that sometime the parties will settle days or weeks after the mediation session.

Q:        What are the Potential Issues for Discussion in a Divorce Mediation?

Assuming that the parties have accumulated marital property during the marriage, the issue is how to divide these assets. These are my thoughts on the typical marital assets:

  • If there is a marital home, there needs to be an agreement as to who retains the property or if it is to be placed on the market for sale.  There also needs to be an agreement as to how the proceeds (if any) are to be split and in what manner.  The parties must decide who will reside in the property during the sale, and how the expenses of the property will be paid.  In the event that the house is “upside down” on the mortgage, that issue needs to be specifically stated. If the parties have agreed that they will “short sell” the house, that must be spelled out in the agreement.  I prefer to have a separate letter agreement which would not be filed in the case, but would take care of all issues related to the sale of the property.
  • Most couples have financial assets other than their residence. The parties will also need to consider all the bank accounts, money market funds, brokerage accounts, retirement accounts, 401k plans, stock options, and other employee benefits.  Each party should have copies of the latest statements for each account, copies of deeds and descriptions of any other property owned, i.e. jewelry, automobiles, boats, etc. Virtually every couple will have debts that must be divided.  Every debt must be listed in the agreement; along with how it will be paid.

Insurance is an important issue. If one party will lose their health insurance in a divorce, the cost of COBRA should be considered with the cost of replacement insurance.  If life insurance is an issue, the policy should be brought to mediation.

If legal fees and expenses are to be a consideration, the statements from all professionals should be brought to mediation.

It’s important to decide if alimony is to be paid, and if so, for how long and in what manner and under what conditions will terminate alimony.

The tax consequences of the property division, alimony and child support payments must be considered.  The mediator is not authorized to give any advice on tax matters.  The best practice is to have this information prior to going to mediation.  However, if you are unable to be certain of the tax consequences, that issue can be decided at a follow-up mediation session or jointly with the lawyers.

If the parties have minor children, the parties need to consider which parent will have primary physical custody and which parent will have secondary physical custody.  If the parties have joint physical custody, meaning that each parent will have the children exactly half of the time, many states will require that a primary physical custodian be designated.  Often, the primary parent will be the parent with the lower income.  In addition, the parties need to be clear about legal custody and who will be the tie-breaker in each area of the child’s life.  The parenting plan must be worked out with precision. It’s also crucial to know the amount of child support and how it is to be paid.  The parties also need to decide how the out-of-pocket medical and extra-curricular expenses are to be shared.

Q:        How do I (or with my Attorney) Prepare for Mediation?

Attorneys should prepare for mediation the same way that they prepare for any court appearance.  In a divorce or modification case, the parties’ financial affidavits should be current.  The issues and possible positions need to be stated.

For instance, if custody is an issue, and there is a child psychologist involved, the attorney should have an affidavit or a report from the psychologist with his/her recommendations.  Ideally, the psychologist should attend the mediation session so that the mediator can speak with the psychologist.  If that is not possible, have the psychologist available by phone.

The attorney should discuss the strengths and weaknesses of both your case and your spouses’ case. Weaknesses are risks.  Each party needs to be informed of the risk factors of their position before the mediation begins. The attorney should suggest possible solutions, both financial and non-financial, and how far each party needs to “budge” to resolve the case.

This all needs to be done prior to the mediation.  Your attorney should share his/her negotiation strategy, and you need to understand and feel comfortable with the process.  It is important to keep in mind that mediation is an art and not a science, and that your attorney’s strategies may change during the mediation, if there are other factors that are revealed during the mediation session.  If there are any reports, such as a Guardian Ad Litem [a guardian appointed to solely represent the interests of the child] or business valuation, there needs to be sufficient time to absorb the report prior to the mediation.

Do you have legal questions? We’re here to help your family. Call us at 770-333-1620.

Frequently Asked Questions About Mediation

If you’ve made the decision to divorce, chances are good that you want to get the process over with as quickly as possible and avoid the expense of litigation, so you can go on with your life. Mediation is a good way to resolve things without the stress and expense of a trial.
It is become increasingly common for the courts to order the parties to mediate the day of trial, prior to hearing the case. You can also mediate at any time.
I always advise my clients to consider mediation, because when both sides can work out their differences that way, it’s usually better for all concerned.
Below are some common questions I hear about mediation.

Q: What is Mediation?
Mediation is an informal process to settle a dispute. In many cases, mediation is a voluntary practice. It is important to keep in mind that the mediator (a neutral third party) does not have the power to decide the case, and that to settle a case, the other party must agree to the proposed resolution. However, many judges will not agree to hear a case until the parties have been through the mediation process.
One of the foundations of mediation is the belief that if the parties are able to confront each other to state what is important to them, clear up misunderstandings and they will be able to reach a resolution. The “resolution” most likely will not be one that either party gets everything they want. However, each party will get some of what they want. In an ideal situation, each party will get those items that they feel are their top priority. At the conclusion of a successful mediation, the Mediator will write up the key points of agreement.

Q: Can we Mediate my divorce, before the divorce is filed?
Absolutely. Since mediation is a private non-adversarial process, it is possible and preferable in many situation, to mediate prior to filing for the divorce. It is far more likely that the divorce will be amicable if the parties settle their differences prior to filing the divorce. The Separation Agreement can be filed with the Complaint for Divorce. The cost of mediating a case is usually far less than the cost of a case in litigation, which can take many months and cost thousands of dollars.

Q: What happens at Mediation?
After the Mediator reviews the “rules” of the mediation, and each party signs that they agree to abide by the rules, the Mediator will ask one party, usually the Plaintiff, to make their opening statement first. The opening statement should tell the facts of the case, i.e. date of marriage, children etc.
Once the facts are established, then the issues that they are asking the mediator to decide should be stated, and their suggestion for resolution. My preference is to resolve the less contentious issues first and let the parties gain momentum to work on the disputed items.
After that, the other party will have the opportunity to give their opening statement, and also add where there is a difference of opinion.
If the parties are in the same room at this point, the Mediator will usually ask for a “caucus” to speak with one side or the other alone. A caucus is a private session. The caucus is a safe place in which the Mediator can ask questions to the party, without the opposing party hearing their remarks. You can tell the Mediator that you do not want them to repeat certain things that you said to them in the caucus to the other side. By caucusing, the Mediators can brainstorm with each side, to help find solutions to resolve the divorce.
The order of who gets to caucus first varies. Some Mediators will routinely caucus first with the Plaintiff. Other mediators may caucus first with the party having the most information. Different mediators will caucus with the party that seems the most anxious about the process. If a party is represented by an attorney, and the attorney is present, it is customary for the attorney to make the opening statement. The Mediator may then ask the party whom the attorney is representing if they have anything to add. The mediator could also flip a coin to decide who goes first.
In many cases the parties are concerned about confidentiality. Although mediation is a confidential process, there are situations, i.e. with a privately owned business, where one party requests a confidentiality agreement to be signed by the other side. As long as the terms are reasonable in the confidentiality agreement, that should not be a problem.

Q: What are the typical “rules” of Mediation?
Although mediation rules vary not only from state to state and court to court, some mediators have their own special rules. However, most mediators will ask that the parties not interrupt each other. I strongly advise my client to listen carefully and respectfully to what the other party has to say. It is important to pay attention and look engaged. This is not the time for nasty facial expressions. It is common practice for one of the rules to address how the mediator will be paid. Some counties will provide mediators for a specified number of hours and after that time is up, then the parties will need to decide how the mediator will be paid for the additional time.

Q: What happens if the parties do not reach an agreement during mediation?
The overwhelming majority of cases settle at mediation. However, if the parties are not able to resolve their differences during the first (second or third) mediation session, it does not mean that the case cannot be resolved without going to court. Reaching an agreement is very much a matter of timing. Sometimes, one party is anxious to put the dispute behind them, and the other person is not ready to end things.
If the case is not resolved during the first session, the parties can agree to schedule another session with the same or a different mediator. It is also possible that the parties either with their attorneys or themselves will reach an agreement after the mediation session has ended, thereby avoiding the uncertainty and expense of having a judge make the decision.
If there is no agreement during the mediation session, it is important to conclude negotiations on a cordial note, so that the door is open to continue negotiating on another day.

Do you have legal questions? We’re here to help your family. Call us at 770-333-1620.