It is an unfortunate fact that approximately 50% of all marriages in the United States end in divorce. After the death of a spouse, divorce ranks as the second most serious trauma anyone can experience in their lifetime. Divorces involving financial disputes, complicated property division, claims for support, or questions concerning child custody can be very expensive and can easily cost tens of thousands of dollars. In some cases, attorney’s fees and costs can top hundreds of thousands of dollars. Further, these cases can take years to get through the family court. Sometimes, the parties simply cannot avoid going to trial in family court. However, the majority of divorces could be settled by agreement with the help of a family court mediator.
What is Family Court Mediation?
Mediation is an alternative to going to family court. Stephan Futeral is a certified family court mediator. A mediator is not a judge and does not make any decisions for the spouses. Instead, the mediator is a neutral third-party who is formally trained to identify and understand issues in family court and to facilitate and to structure negotiations between the parties. A skilled mediator can help divorcing couples move past their conflict and determine for themselves what is important and, ultimately, the outcome of their situation.
Why Mediate Your Divorce?
One of the main reasons why many married couples find themselves in a divorce is because during the marriage they fail to communicate, to cooperate, and to negotiate with each other over matters such as children, money, and emotional and physical needs. These failures do not go away after the parties separate, and the parties continue to find it very difficult to resolve their differences in the divorce just as they did in marriage. Moreover, the emotional impact a divorce has on most couples makes it even more challenging for them to cooperate and to solve problems together. So, it is no wonder why so many couples turn to lawyers and the family court to sort out their futures. However, going to family court is rarely satisfying for either party because of the emotional toll, the financial costs, and the lack of control either spouse has over the ultimate outcome.
The Advantages of Mediation
Mediation offers many significant advantages over battling it out in court. The following are a few examples:
|Parties can focus on their true needs and interests.||A judge decides what is important for them and their family.|
|Both parties have control over the voluntary negotiation process.||A judge controls the parties’ fate.|
|The parties’ resolution can be very creative, and the parties avoid “win-lose” and “lose-lose” outcomes that are typically the result of litigation.||A family court judge’s decision is rarely creative and is confined to the law, and even those parties who “win” at trial oftentimes find that the cost of winning (time, energy, emotions, money) was too high.|
|The parties can maintain privacy because the sessions are confidential, and if no settlement is reached any statements during the mediation are inadmissible as evidence in any subsequent litigation.||Court records may be open to public examination.|
|Through mediation and settlement, the parties may improve their relationship or end their marriage civilly.||Court hearings and trials typically foster resentment and ongoing hostility between parties.|
|In resolving disputes through mediation, the parties save an enormous amount of time, energy, and expense.||Typically it takes one to two years to trial, and several more years may be spent after trial if either party appeals the judge’s decision. The cost of trial (and appeals) is significantly expensive.|
|Studies indicate that parties who enter into voluntary agreements through mediation are much more likely to honor the terms of their agreement than they are with judicially imposed resolutions.||The parties continue to litigate in court to seek modification or enforcement of the court’s orders.|
Does Mediation Really Work?
Reports compiled by our court systems, the American Arbitration Association, and other organizations show that the majority of all mediations result in a settlement. There are many reasons why mediation works even where all prior attempts at settlement have failed or where the parties are pessimistic about settlement.
Why Does Mediation Work?
Sometimes the parties’ own lawyers may unintentionally get in the way of settlement. For example, some attorneys may never negotiate without the help of a mediator because they are worried that making a reasonable settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Also, although many attorneys are trained to do battle in the courtroom, these attorneys oftentimes do not possess essential negotiation skills. Many lawyers spend more effort in posturing and hard bargaining tactics than in settling disputes by seeking common ground.
Mediation provides a safe setting for negotiation because the mediator can control and direct the parties’ (and their lawyers’) communications to avoid arguments, posturing, or other unproductive discussions and to keep the parties focused on exploring helpful ways toward settlement. The parties may meet privately (caucus) with the mediator and discuss and explore settlement options which the mediator keeps confidential unless authorized to convey these options to the other side.
Oftentimes, the parties (and their lawyers) have schedules and other commitments which distract them from finding the time to negotiate. Mediation provides the opportunity for the parties to meet together for a designated time at a designated location (such as the mediator’s office) for the specific purpose of discussing settlement. At mediation, the parties are able to focus their entire attention on reaching a settlement without distraction.
During mediation, both parties have the opportunity to directly educate each other about the issues and concerns that are important to them. The mediator can help the parties communicate these issues and concerns to each other in ways that do not antagonize or offend either party.
Mediation offers each party a realistic look at what results they are likely to achieve in family court which tends to make the parties’ negotiations more reasonable and flexible. Plus, mediation assists the parties, and their attorneys, in developing options for settlement. The more options, the greater the chances of success.