IT IS WELL KNOWN WITHIN THE FAMILY LAW INDUSTRY THAT COURT ORDERS WHICH ARE BASED ON THE AGREEMENTS OF THE PARTIES ARE MORE OFTEN HONORED AND REQUIRE LESS ENFORCEMENT LITIGATION THAN COURT ORDERS IMPOSED UPON THE PARTIES BY JUDGES ABSENT AN AGREEMENT. IN ADDITION, PARTIES TEND TO HAVE BETTER POST DIVORCE OR PATERNITY RELATIONSHIPS WHEN THE FAMILY LAW ACTION IS SETTLED BY THE PARTIES THROUGH THEIR AGREEMENTS.
Family Law mediation is the term used to describe the process wherein parties involved in a pending or imminent family law action (lawsuit) consult with a licensed mediator in an attempt to resolve some or all of their contested issues. The process can be a temporary relief mediation wherein issues are resolved on a temporary basis until final decisions are made, or a permanent relief mediation wherein issues are resolved on a permanent basis. Often a temporary relief mediation becomes a permanent mediation as settlements are agreed to and put in writing. The desired end result is a signed settlement agreement which can be ratified (blessed) by a judge during a short uncontested final hearing where nobody argues about anything. A contested final hearing or trial is thus avoided.
Formal mediation typically involves both parties (a Husband and Wife or a Father and Mother), their attorneys and a licensed mediator.
The benefits of mediation are manifold and significant. A general short list includes:
- Mediation if fast and efficient and can save a lot of money. All 3 are great benefits;
- You can customize your mediated agreement knowing what is best for you and your family, a dynamic never fully understood by a judge who is largely a stranger to your real circumstances;
- When you settle your own case the end result is known. Any contested family law litigation always involves an unknown end result;
- Parties are more likely to accept and obey court orders that they agreed to as opposed to those that were judicially imposed against them;
- Relationships between parties after the lawsuit is concluded are typically more cordial if contested litigation is avoided;
- Children benefit greatly from the ending of litigation hostilities as quickly as possible;
- Parties benefit greatly from the reduction of stress and anxiety associated with the ending of litigation.
Formal family law mediation first became popular approximately 30 years ago. After a short professional learning curve took place, mediation proved to be so successful that it quickly became entrenched within the family law court system. Today professional formal mediation is almost always required by judges (mandatory) at least one time before litigants are entitled to even schedule a contested final hearing or trial. I estimate that approximately 90% of all family law cases eventually settle thus negating the need for a contested final hearing or trial.
The mediation process varies from one mediator to another. In most cases parties are placed into separate rooms. The rules of the process are explained to each side and each side provides a summary of the case (either written or verbal) to the mediator. The mediator then goes back and forth between rooms until common ground is found and issues are hopefully resolved. A quality mediator has a lot of family law experience and can help guide parties and their attorneys in ways that increase the chances of reaching agreements. This is part art and part science. Every mediator is different as is every attorney as is every judge. Naturally, the facts of each case, including yours, are also unique.
What is said in mediation is mostly confidential and cannot be used against the speaker. This gives both sides the confidence to negotiate fully without negative repercussions. A full explanation of this concept is beyond the scope of this article but can be explained by a family law attorney.
David Anton has been a licensed family law mediator for nearly 25 years. In addition, over the last 30 years he has attended hundreds of successful mediations where he was the representative of one of the parties. He knows the process well and loves the process. He can steer you through your mediation which, statistically speaking, will likely be successful.