Mediation is an attempt by a disinterested third party, called the mediator, to bring about an agreement on contested issues. It is important for attorneys practicing family law to be conversant with what mediation entails so that the client may make the best decision for their particular situation.
The Mediation Option
Many people, when faced with the prospect of an impending divorce, think first and foremost of going to trial. The thought of appearing before a judge is for many a terrifying ordeal which only adds stress to an already stressful situation. Mediation can be a comforting substitute for the anxiety of the courthouse. The daunting courtroom is, in mediation, replaced by a more serene environment, thus helping to put your client’s mind at ease. All attorneys should be familiar with the various forms of alternative dispute resolution (ADR) that are available. The client’s needs and personality should also be considered when making a recommendation. In other words, it is not only important to know which ADR fits each client, but also which client fits which ADR.
Identifying Suitable Cases
Despite the many benefits that mediation can provide, an attorney who is empathetic with his client’s situation will at times refrain from recommending mediation. Some divorces are, to say the least, simply not suitable for mediation. The disputants should have a respectful relationship with each other. Both parties should be capable of expressing their ideas, wants, and needs in a mature manner. However, it is important for attorneys to remain mindful that many issues discussed during mediation, such as child custody, pensions, distribution of finances, and use of the primary residence have the potential to create a contentious atmosphere between the parties. In addition, it is important to understand that some people just are not cut out for mediation. An attorney should never recommend mediation to their client when there is a history of domestic violence between the parties.
The Role of the Mediator
A mediator is not a judge. She does not make any decisions. Her primary goal is to assist both parties in reaching an agreement that is to their mutual satisfaction. Unlike judges, mediators often create unique agreements that deviate from the norm because the agreements are tailor made by the couple to fit their circumstances and desires. The mediator differs from the arbitrator in that the mediator can, and in fact is expected to, meet individually with each side. Hearing what each side truly wants out of the process makes the mediator’s job that much simpler, and everyone benefits.
The mediator also stands in contrast to attorneys because, unlike attorneys, who are taking an adversarial, competitive approach for their clients, the mediator’s job is to help both parties reach a suitable conclusion. Because the mediator can take no action that is binding on the disputants, there is little harm that can come about by choosing this ADR. This should give both sides confidence when approaching mediation.
Mediation Has Positive Effects on Children
The client’s choice to mediate a conflict often has many beneficial effects on any children who may be involved. Mediation is generally less stressful than litigation, allowing for a more peaceful home during the conflict. In addition, children benefit from seeing their parents cooperating, even when they disagree with each other. The cooperation of the parents often leads to more joint custodies being awarded in mediation, benefiting the children with a continued future with both parents. Like many other issues in mediation, parties generally retain more control over their children’s interest and needs than they would if they chose litigation.
Mediation is Cost-Effective
For many clients, the best reason for choosing mediation will be the cost. Mediation will almost always be less expensive than litigation. While both mediation and litigation can involve experts, such as accountants and real estate appraisers, there is only one mediator; as opposed to two attorneys or more were the parties to appear in court. Remember that mediation is concerned with both parties working together, and doing so can dramatically decrease the billable time owed. The cost of divorce mediation is generally 40% - 60% lower than divorce litigation.
Answering Your Client’s Concerns
Mediation is still a relatively unknown process to the general public, and it is not uncommon for the attorney to be confronted with various questions and concerns from inexperienced clients. It is important that you familiarize yourself with many of the most common fears, so that you can do your part in putting your client’s mind at ease. Someone who is comfortable with the process will be much more beneficial to everyone than someone who is nervous and perhaps a bit distrusting of this strange, new way of resolving disputes.
Your client may believe that their particular case is too complicated to benefit from mediation. This is where your objective view of the situation will be greatly needed. You should inform your client that no case is too complex for mediation. Alternatively, the client may imagine sitting alone at a table with no one else there except for the other party in the dispute and the mediator, who will most likely be a complete stranger. The client should be reassured that they will not be going through any of this alone. Mediation, resembling litigation, employs experts to assist with the process.
Another concern that a client may have is, “What if we are unable to agree on everything?” Assure your client that it is fairly common to reach an agreement on all but one or two issues, but even then, mediation is rarely “wasted time.” A settlement can be drawn up on all the agreed upon issues and then, should the parties later decide to litigate the remaining issues, less time will be spent in the courtroom.
Many factors suggest that mediation can often be the smarter choice for both you and your client. Remind them that mediating a dispute has many benefits over litigating. Distinct from litigation, mediation is for the most part a healthier and less stressful course of action not only for the parties involved, but for family and friends as well. Remember that your client is most likely going through a difficult time when they are in your office. It is your job to ensure that things go as smoothly as possible for them. The suspense of a looming divorce is rarely a pleasant experience, and a client will undoubtedly be grateful for any way in which you can simplify the process.