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 divorce 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.
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