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MEDIATION: A Particularly Powerful Tool in Family Law

MEDIATION: A Particularly Powerful Tool in Family Law

Today, most practitioners and parties are familiar with mediation and its numerous benefits in a myriad of disputes. One area where it is especially useful is family law. There are several reasons for this:

1. Each party has an opportunity to tell their side of the story to a neutral third party. The value of this can be tremendous. Sometimes, it’s the “therapeutic” effect of having a neutral person hear your client’s perspective and for them to feel seen and heard in the legal context. Other times, it’s the benefit of having a neutral hear them, empathize and then explain the limited effect that, for example, a wife’s or husband’s adultery will have on the ultimate result even if the case is tried. Let’s face it: it’s helpful to have a neutral third party deliver or echo unwanted news to a client. It also provides a layer of insulation for the lawyer—another set of trained eyes is involved in your settlement negotiations and the agreement.

2. The parties and lawyers control the outcome of the case. This is one of my personal top reasons to mediate family law cases. We are not forced to accept an unacceptable outcome. We can be creative in finding workable solutions. We can and should factor in timing, individual and varying circumstances, tax and estate consequences, and almost any issue that is important to the parties.

3. The parties select the mediator they want. Unlike a judge who is randomly assigned to your case, the parties get to choose their mediator. In doing so, you should take into consideration the mediator’s familiarity with the law; the customary disposition of relevant issues—whether by the court or by agreement; the mediator’s availability for pre-mediation conferences and a timely mediation; and the mediator’s style and likely ability to work with both parties and their lawyers.

4. Mediation is not controlled by the formal structure of a courtroom. We are not limited to direct, cross and redirect. Rather, we can go back and forth as often as needed to flesh out an issue. If the parties forgot something early in the day, we could add it later in the day, etc. We are also not governed by the Rules of Evidence and Civil Procedure, so parties can discuss and reveal issues and documents that are important to them, even if they ultimately may not be admissible in court. Mediations are private and confidential. All negotiations and the basis or reasons therefor are confidential and cannot be used against either party.

5. The objectivity of a third-party neutral provides you with a bit of a mock trial even if you are not able to resolve your case at mediation. Mediation provides a cost-effective way to test your theories, positions and evidence before a neutral, experienced and educated third party. The overwhelming majority of cases I mediate settle at mediation or soon thereafter. But even in the small percentage of cases that don’t settle, mediation helps the parties and lawyers see their case’s strengths and weaknesses, where additional evidence needed to be developed, where trial issues could be streamlined, etc. Divorce and family cases—including estate matters—are often highly emotionally charged. Having that third-party mediator in the room viewing the issues more from a Judge’s perspective is worth the price of admission.

6. Mediations are cost-effective. Regardless of the parties’ fee arrangement, mediations typically result in significant cost savings in legal fees, expert fees and discovery costs (court reporters, transcript and document fees, etc.)

7. Mediation expedites resolution and finality. Mediation can lead to a full and final resolution of your case much sooner than litigation. It eliminates the frequent delays in trial settings, waiting on the court to rule, frequent post-trial motions regarding a ruling and there are no appeals of a mediated result. In many jurisdictions, mediators can eliminate years of delay and uncertainty. In all jurisdictions, successful mediations can reach final resolution much more quickly than if the matter is litigated.

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