What Is Family Law Mediation?
Family law mediation is a means by which parties can resolve disputes that are commonly brought before the family law courts. Family law courts, in very general terms, are limited to ordering certain outcomes based on the law. For example, in a child custody case, the judge would determine what is in that child’s best interests, and order a parenting plan or parenting schedule accordingly. In other words, the family law courts typically apply strict legal rules to a set of facts or circumstances. If, however, the parties can agree on a resolution, oftentimes the court can order the parties’ result.
The benefits of family law mediation over family law court proceedings are numerous. First, it is favorable to all parties involved, both in terms of their relationship and financially. The parties and the mediator maintain control and discretion over what topics or subjects are to be discussed in the family law mediation session. The parties, through their successful family law mediation, can create a "win-win" environment whereas the court system pits the parties against one another in an adversarial proceeding with no true opportunity for resolution until a decision is forced by a judge. In addition, while litigation takes months or years and countless legal fees, mediation can take as little as a few hours. When the family law mediation is over, the drafting of any court order takes just minutes. In addition, while it is possible for an order to be entered the same day in court, the reality is that it is customary for each party to be given time after court to consider the order , and to make sure that the parties have clearly understood what is being ordered. An order resulting from family law mediation is executed, that day, while the family law mediation is taking place. It is specifically intended to be signed only by the parties themselves, with no court involvement.
The use of family law mediation is not limited to the final resolution of a family law case. Family law mediation is often utilized to come to a specific agreement, where the parties may have reached a consensus as to all but one matter. For example, if the parties are able to agree on a child support amount, the family law mediation process can be used solely to calculate that amount. Once the amount is calculated, a family law mediation order can be prepared and signed on that date. Similarly, parties are always free, at any time in their family law case, to utilize the family law mediation process to discuss only one judge-ordered subject at a time. For instance, upon the filing of a complaint for divorce, a family law court may require that the parties engage in a "parent education seminar" to learn about the impacts of divorce on children. The parties may find that it is more beneficial to attend a 4-hour seminar, together, rather than to each attend a 3-day seminar. The family law mediation process can be used to discuss that issue. Ultimately, the family law courts have a prescribed procedure to follow, whereas family law mediation is very flexible to the needs of the parties, with no rules or restrictions.
The Benefits of Retaining a Family Law Mediation Attorney
Family law mediation attorneys play a key part in the process of family law mediation. They help to facilitate the negotiations that take place, so the people who are going through the divorce process reach mutually agreeable terms on the division of property, parenting time with the child or children, and child support as well as alimony. Family law mediation attorneys are certified and learn about the processes involved with family law mediation. They have an extensive knowledge of family law and what is typically acceptable in terms of the sharing of property. They are also trained in negotiation skills, helping people resolve and deal with conflicting issues and come to a resolution. Family law mediation attorneys are impartial and provide the individuals with options, providing them with information and understanding that hopefully will lead to an agreement that is satisfactory to all. Family law mediation attorneys are there to help resolve the conflict, not to judge or give legal advice, which helps make them more effective in their role.
Characteristics of a Good Family Law Mediation Attorney
Mediation in family law cases requires knowledge of the law, interpersonal skills and the ability to achieve goals for the client. It is a hybrid of both legal and psychological tasks. Amongst many others, the most important qualities to look for in a mediation attorney is experience, communication skills, and mediation certifications. While the attorney’s knowledge of the law is crucial, the success of the mediation will be largely influenced by the attorney’s interpersonal skills. The ability to listen to both clients’ concerns, as well as each other’s concerns, and translate those concerns and feelings into something tangible that both clients can agree to is essential to settlement. Someone who does not possess the interpersonal skills to handle the attorneys and litigants may just bog down the mediation process, like being stuck in molasses, or worse. They may have an attorney who keeps speaking over you in a bullying manner. The key is finding a solid family law mediation attorney that will listen to you, as well as to the other side. That makes for the best mediator. Over the years I have heard my share of stories from potential clients that the attorneys they chose for an initial consultation, put them through the ringer, and basically didn’t listen to them at all. There are times an attorney’s matter-of-fact style is what is needed. But, most of the time it may be easier if the attorney you choose is someone who can listen carefully to your issues, and then come up with a plan you can both agree on. Finding someone with those qualities is a tremendous plus. It helps to avoid problems later on if you can start off on the right foot. It is also common that people do not want to hear that their position in a case is unreasonable. They want to be told that they are right. But, the attorney needs to be honest with the clients about whether what he or she is demanding is reasonable or not as it will guide the mediation process. If the client realizes that the position they are taking would never hold up if the issue was contested (and also realize how much money would be spent to get there), more than likely the client will be more open to settlement at that point than before that realization. This is what a good mediator will do. The unfortunate part is that the aggressive style of some family law practitioners usually allows for one (or both) parties to "finish" the mediation without a result. Someone trained in mediation and who has experience should have the ability to quickly guide litigants towards a satisfactory resolution of a case for both parties, without the art of verbal combat. Someone with litigation credentials cannot give the neutral point of view that is required of a mediation attorney.
How to Get Ready for Family Law Mediation
Preparing for family mediation requires more than just showing up. Experienced family law mediation attorneys insist that steps should be taken to ensure the process goes as smoothly as possible. One of those steps is gathering financial documentation prior to mediation.
When a financially complex divorce is pending, mediation is frequently a great option. However, in order for a spouse to get the most out of mediation, complete transparency is crucial. If one spouse is hiding assets or has placed funds with a trusted friend in the hopes of keeping them away from the other spouse, the disclosure of these actions will be brought to light through the process of mediation. But, if these funds are not disclosed in an honest manner during mediation, the spouse under a duty to disclose may find him or herself facing discovery requests well into litigation.
Another action spouses must take is to establish specific goals early on in the process. In order to achieve a successful outcome at mediation, most experienced family law mediation professionals agree that at least some level of cooperation between spouses is important. Cooperation and communication during mediation will help reduce costs and make the process go smoothly. If both parties agree on a few specific issues, its time to bring a family law mediation professional on board.
Making sure you are emotionally ready for mediation is perhaps the most difficult step. It is commonly agreed that mediation is a problem-solving process. However, it is impossible to negotiate with someone who is angry or consumed by emotions. These feelings must be put aside for a more rational state of mind to help you reach an informal yet indelible settlement.
Understanding the Mediation Process
The initial meeting for mediation involves the exchange of basic information regarding the parties and what issues they have come to the mediators for. Once you have chosen a mediator, there will be an agreement for service that needs to be signed. It outlines their process, expectations from both parties, and the fee structure. The agreement should include a provision for confidentiality as well as a process for extra time or meetings. If both parties agree to resolve their issues there will be a retainer so the mediator can get started on the case. That portion of the fee is put in trust until your matter is resolved. In the next session the mediator will ask for each party’s position, if there are children involved both will be required to submit a "mediation statement" to ask what they want the other to know. This way it can be reviewed prior to the meeting and have more time with the facts at hand. Their first job is to establish ground rules on how you will communicate with each other. If one party will interrupt the other, then a meeting will go over the next scheduled appointment. If one party doesn’t listen to the other, thinking of their own needs only, this will likewise end the mediation session. The client who fails to prioritize discussion points before heading into mediation may be unprepared for the changes ahead, if terms are not agreed upon. This is why the meeting should be approached from a constructive point of view. Once the ground rules are established , the mediator will cross check each party’s understanding of the issues at hand. Once the ground rules are established they will evaluate what type of "facilitator" they believe will be most effective for the issues presented. Some matters require a mediator, while others need a more assertive individual. One thing the family law mediator will NOT do is broker the deal. When there is some disagreement on what is necessary, to counter this a point by point method seems to work best. The mediator will take each item and give a short summation of the facts, and then make a suggestion as to whether they are enforceable in the eyes of the law. The attorney will quote the law or case that has been tried similar to the situation being mediated. The parties can then decide to make the changes necessary to move forward with the process or drop the point and move on. The mediator has full disclosure of all the party’s finances. Although in some cases this is not appropriate, other times it is necessary that both parties agree to a set amount of hours for shared information between phase two and phase three. The mediator will accomplish this by preparing a settlement agreement that will have a written summary of the points that have been agreed to in mediation and what other items have been left to discuss at a later meeting. Once the mediator has completed what was expected, they will present the findings to each party’s attorney to negotiate the contract.
Common Issues Around Family Law Mediation
One of the most difficult and emotionally-charged processes through which you will go during a divorce is mediation. Many people who have gone through this process will spend years talking about how complicated and frustrating it is.
One of the major challenges to mediation is that you and your spouse may be trying to communicate for one of the first times since the relationship broke down and since the divorce process started. It could be very difficult to listen to and participate in a structured conversation with your former partner. You may shift quickly between feeling anger and sadness, betraying yourself as you try to reach an agreement but also deal with your feelings. An attorney can help you with this by going through the details of the divorce with you and raising critical points before heading into the mediation session, so that you have talked through those details and potential options in advance. Your lawyer can also provide support at the session, keeping you on track if and when your negative feelings get in the way.
The division of assets can also be a hurdle to the process. Many divorces result in complex asset divisions. You might have retirement accounts, joint businesses, or family businesses to sort through, and you may not fully understand your spouse’s income or the assets and liabilities you share. Your attorney can help you navigate this process by doing adequate research ahead of time, reaching out to your spouse’s employer if necessary to obtain information about pensions, reviewing business tax returns, and such. Having a good understanding of your assets can protect you from making mistakes in mediation that could put you at a disadvantage in the settlement.
Just as often, parenting issues will also come up during mediation. You will want to work together to set a child custody agreement that ensures the wellbeing of your child. Many parents choose to share physical and legal custody, as this allows them both to be equally involved in their children’s lives. This can be difficult to navigate if emotions get in the way. Working with an attorney will help ensure that you are able to keep the child’s needs and welfare as the focus of the negotiation.
There are many ups and downs during a divorce proceeding. Addressing the sensitive issues upfront, before the mediation session, and focusing on communication with your ex will help keep your divorce on a productive track.
Time and Cost Savings Associated With Family Law Mediation
The financial considerations of family law litigation are well known. In contested divorce matters, the cost of a "no-fault divorce" can easily approach six figures. A recent blog post on complex divorce litigation discusses one case in which the cost to litigate the matter likely approached one million dollars in attorney’s fees, expert costs and other expenses. Where a litigated divorce costs $50,000 or more in Michigan, a mediated divorce is likely to cost $10,000 or less in many cases. Mediation costs are driven largely by the complexity of the case, the skill of the mediating attorney, and the active participation efforts of the parties.
The same analysis applies to custody matters in CAM process cases. Family law attorney Thomas D. Segalla of Farmington Hills states, "When you are in Court on a custody issue, it frequently becomes an overblown showdown where the cost of the forensic examiners, custody evaluations, parenting time experts, and attorneys tends to skyrocket — typically to around 5 to 10 times the cost if the matter were mediated or handled with these costs minimized or waived." Segalla often works as a mediator and as an attorney when not serving as Guardian Ad Litem (GAL) in contested custody matters in CAM divorces who needs a neutral advocate and evaluator on their side.
"I see this all the time with litigated custody matters. Many couples spend money on long-term tensions because they try to stick the the ‘as seen on TV’ litigation model for custody disputes, which rarely solves problems and often exacerbates conflicts." Segalla adds. "If people start with a clean slate and honestly want to just come to terms with their conflicts, the doors to alternative dispute resolution (i.e. mediation) will be opened, and will save them thousands of dollars."
While few people are happy to litigate divorce or custody matters, they often find that litigation is expensive and can lead to wasteful spending on both sides.
How to Retain the Right Family Law Mediation Attorney
The right family law mediation attorney for your case is an attorney that has experience handling the issues in your family law matter. For example, if you have a highly contested custody matter, you want an attorney that has years of experience arguing, settling, or mediating cases similar to yours on a regular basis. The same principle applies to child support issues. Finding an attorney that has experience advocating for support on both sides – for example, if you are a father that is a high earner who has never been given enough time with his children and is now involved in a highly contested custody matter, you want an attorney that understands both time with the children equalizes the amount of support ordered to be paid (so contact your attorney that often represents support payors) and having a 50/50 schedule will not put your client out of business and should be the starting point in crafting the parenting plan.
Fathers are often times over looked in custody matters and are treated as the secondary parent in all family matters, so it is important to find an attorney that aggressively fights for fathers’ rights on a daily basis. Additionally, if you are a teacher whose husband is low income might be on a fixed budget and cannot afford to pay as high of child support as is typically paid by someone making a six-figure salary, an attorney that represents those types of clients (not just high income earners like the attorneys that represent high-income fathers) would understand how to present our budgets to court in a persuasive fashion.
If you are a stay at home mom with hopes of raising your children but are met with contempt in court, you want an attorney that knows what to do to get the desired result in court. The judge may offer up an evaluative assessment or partial custody evaluation where his/her private opinions could get in the way with your case. Family law benchmark cases are rare and judges have judges that recommend psychological evaluations or evaluations by experts they regularly work with , but sometimes it is not in your favor and does not apply to your case. You need an advocate that knows how to handle these judges and their opinions without being offensive (and therefore not offending the judge which could help your case because even judges are swayed when they respect their colleagues).
If you are the mom in a personal injury situation or a professional license case, you want an attorney that works only on those types of cases and knows how to negotiate with your husband’s attorney or has a thorough understanding of the court system and judges who will hear and or try your case.
Interviewing for the right attorney (like interviewing for the right job) is difficult because, unlike having had a prior employer, they do not know your skills before you arrive. You essentially have to present your best self as if you would in a personal interview (that is more casual). Family law attorneys can have hundreds of new clients a year, they often don’t have time to analyze each new case more than once or twice, and many attorneys simply settle cases because that is in the best interest of their bank account (i.e., billable hours, or the amount of time they can charge for reviewing emails, telephone calls, and writing letters to opposing counsel).
When choosing the right attorney for you, please be sure that you find an attorney that works within your comfort zone, listens attentively to your story and your goals without interruption. You want to feel good about the attorney you hire when you leave that meeting and leave fully educated on your case, the attorneys’ background, and the process going forward.
Many times attorneys are guilty of handling several cases at once, which is a reason it seems so easy to hire attorneys that appear well-credentialed but may not have the demeanor you would like. Or, they lack the time to handle your case and give you the attention to make you feel like you are their only client at that moment. This is an issue for many attorneys, but it should not be. What I find to be the most helpful is to be handled by a team of attorneys so that I have the luxury of focusing on your case and concerns in the time we have allocated for your representation. Your attorney should be available at all times to return your phone call within 24 hours, and return emails within 24 hours. Clients deserve full representation, and the right attorney will realize this.
