Family Law Mediation

What is Divorce/Family Mediation?

Mediation is a process where domestic partners work with a third-party, neutral professional to reach agreements concerning their finances and children which are ultimately set forth in a written contract commonly known as a separation agreement.

What is the Interplay Between Lawyers and Mediators?

If you hire a mediator to facilitate a settlement, then they cannot represent you, nor your spouse/partner, in a later contested matter. As a neutral party, the mediator walks you through a process designed to help you reach an agreement on major issues related to divorce — for example: (i) child support, (ii) parenting arrangements, (iii) division of property, and the like. Ideally, each party has separate counsel to perform the following functions: (i) educate you on the law and your expectations if the case were to go to court — an informed party is better able to intelligently discuss each issue; (ii) advise you as to whether any proposed settlements are in your best interests and are reasonable; and, (iii) review the final agreement to ensure that it accomplishes what you believe you have agreed to.

It’s likewise important to be very clear about whether you are seeking to hire the lawyer for representation or as a lawyer-mediator — only one professional hat can be worn under our adversarial system and the rules of professional conduct,
so be sure to indicate which type of services you are interested in the first time you call the office.

What are the Chief Benefits to Mediation?

Sir Isaac Newton first announced his third law of motion that every action has an equal and opposite reaction. In my thirty plus years of trial practice, I can tell you Sir Isaac Newton’s 16th-century observation of matter and motion likewise applies to human relationships. Often times, when one party gets “taken to the cleaners” as is often described in the vernacular, the seeds are then sown for the next round of litigation — you can be sure that, unless both parties feel that the ultimate resolution is fair, the one who feels defeated will come back to fight — maybe not in the next month, or even in the next year, but they will be back to vindicate any perceived wrongs. That means more time, expense, money and aggravation. This is the chief benefit to mediation — it is a process where each party determines the resolution through their active participation and with the help of the mediator guiding solutions which are interest driven rather than position driven. Here are some of the other chief benefits to mediation:

• The mediation process enables the parties to emerge from a divorce with their dignity and with their self-respect intact.
• Where children are involved, mediation protects family relationships and establishes a sound foundation for continued parenting.
• Mediation is a forward-looking process. It does not focus on the past, nor does it seek to assess blame. The goal of mediation is to enable the parties to plan for and deal with their futures.
• Parties are more likely to comply with the terms of an agreement which they have fashioned themselves, rather than one imposed upon them by the court. Post-divorce litigation is thereby reduced.
• Since mediation can generally be concluded in a limited time frame, there is less delay, confusion, and uncertainty as to the outcome, and the emotional toll on the parties and family members is greatly reduced.
• Mediation is informal, non-adversarial and, in order to promote candor, totally confidential. The mediator cannot be called as a witness in any court proceeding. Settlement proposals discussed during the course of mediation cannot be revealed in later court hearings.
• A party who becomes dissatisfied with the mediation process can withdraw at any time. This ensures that neither party can intimidate or exploit the other party or manipulate the process itself.
• A mediated agreement will generally be a fraction of the cost of adversarial litigation in court.
• Mediation recognizes that both parties have legitimate needs and helps develop options that will successfully reconcile those needs to the satisfaction of both parties.
• Mediation is a process committed to self-determination. Its purpose is to promote identification of issues, explore alternatives for resolution and allow the settlement of issues by the parties themselves.
• Only after an agreement has been reached by the parties, then reviewed and approved by their respective attorneys does the mediated agreement become final and binding.
• Through mediation, the parties can make agreements with respect to matters over which the court has no jurisdiction. Matters which may be legally irrelevant in court may be considered and resolved by the parties.
• Through mediation, the parties can fashion creative financial and tax planning solutions which can benefit both parties.