Mediation is a process in which the parties hire a neutral third party to assist them in reaching agreements. The mediator may or may not be a lawyer. A mediator can provide information about the law and the legal process and guide a discussion to help the parties resolve issues. A mediator does not, however, represent either party and cannot provide legal advice. Mediation may occur with parties who have retained lawyers as well as parties who are not represented. Generally, parties exchange information, brainstorm and negotiate with one another in the presence of the mediator. The goal of mediation is to assist the parties in reaching agreements that meet the needs of both parties without the financial and emotional cost of contested or protracted legal proceedings. The parties must still prepare the pleadings and other required court forms, sometimes with the assistance of the mediator, unless one or both also retain a lawyer.
Mediation and collaborative practice share some common characteristics. Both processes use an interest-based problem-solving approach to negotiation, which seeks to identify outcomes that meet the needs and objectives of all parties. Both have the goal of guiding the parties to a personalized, respectful resolution that facilitates communication and minimizes conflict. Both emphasize client education, leveling the balance of power to assure both parties’ effective participation, listening skills, and creative problem solving. Finally, both mediation and collaboration allow the parties to retain privacy and control throughout the course of the process.
RALEIGH FAMILY MEDIATION | A PRACTICABLE ALTERNATIVE
Family law attorneys in Wake County are often more interested in posturing, than in resolving family law disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. This technique often results in one of the parties filing a Complaint in court which commences litigation. The high cost and long delays associated with the Wake County Family Court System often make litigation an impractical method of resolving disputes. Parties increasingly find that they are spending more time and money to litigate than the cost to settle the matter. The increasing number of lawsuits filed each year is indicative of the unwillingness or inability of parties and their attorneys to effectively utilize negotiation to resolve disputes. It is not uncommon for the attorney’s fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. However, there is a practicable alternative.
Mediation is a process for resolving disputes by which an impartial mediator assists the parties in reaching a mutually satisfactory settlement. Mediation provides you and your spouse a way to settle the conflict between you in a way that helps you to work together, especially as parents. This is extremely important if you have children and must interact with your ex-spouse after you are divorced. Mediation brings about communication between you, which can then be used when you must discuss issues pertaining to your finances or your children. If you are to avoid the pitfalls of litigation, you should try to avoid attorneys altogether. Neither you nor the other party has to have a lawyer to mediate. However, if you choose to have a lawyer or if your circumstances are such that it is absolutely necessary to have a lawyer, then choose carefully.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator’s role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them. Since the mediator’s job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
A family mediator is a neutral person who guides the parties toward a workable solution on their issues. The family mediator helps the parties reach an agreement that is acceptable to all parties. The family mediator is typically a lawyer who exclusively practices in the area of family law. The mediator has the legal knowledge necessary to frame the legal issues and is trained to help parties explore the options in order to decide on an agreement. The mediator will help the parties think about the possible advantages and disadvantages of a proposed solution. The mediator focuses the parties on future goals to help avoid future disputes. The mediator is not a judge. The family mediator will not take sides or make decisions for you. The mediator does not give legal advice. The mediator may suggest possible best or worst case scenarios to help each party think about what might happen.
A mediation session is private and confidential. It is normally held in an attorney’s office and no public record is made of the proceedings. If no settlement is reached, any statements made during the proceedings are inadmissible as evidence in any subsequent litigation. The mediator cannot testify for either one of you in court. There will be reasonable expectations for you to contribute to and simplify the process; forms and questionnaires will be made available in advance of the sessions for those that would like to begin gathering data, completing documents, making decisions, etc. This may help to reduce costs. A mediation session typically begins with a meeting with the parties and their attorneys. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute. Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called “caucuses”. In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.
I AM OFTEN ASKED ‘WHAT CAN BE MEDIATED?’
I LIKE TO SAY ‘JUST ABOUT ANYTHING,’ AND I TRULY MEAN IT.
Here are some commonly mediated family law issues:
- Child Custody and Visitation (Temporary, Permanent & Modifications)
- Child Support (Temporary, Permanent & Modifications)
- Post Separation Support
- Division of Marital Assets and Debts
- Household Furnishings and other Personal Property
- Pre and Post Nuptial Agreements
- Revisions to Separation and Property Settlement Agreements
- Breach of Separation and Property Settlement Agreement Claims
- Same Sex relationships
THE AMERICAN ARBITRATION ASSOCIATION REPORTS THAT OVER 85% OF ALL MEDIATIONS RESULT IN A SETTLEMENT.
Here are a number of reasons why mediation works:
- Attorneys often fear that the making of any “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. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications.
- Since the mediator’s job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
- Mediation provides the opportunity for all decision-makers to meet at the bargaining table for the express purpose of discussing settlement. With each party paying one half the cost of the mediator’s fee, each party is vested in working through a reasonable solution.
- During the mediation session, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. The intensity of a party’s feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.
- Mediation allows each side to hypothesize a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to “give in”.
- Mediation brings the important issues to the forefront and offers each party a “realistic” look at their case and what results they are likely to achieve in court. As the parties focus on what is important and what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.
- Mediation assists the parties in developing options for settlement. Mediators are often creative and the more options that are developed, the greater the chances of success. The mediator can assist the parties to clarify their real objective and to consider alternatives that may have been overlooked.
REALIZATIONS OF LITIGATION
- The law cannot provide the remedy you want, only you can.
- You have little to no control.
- The Judge makes the decision and typically neither party “wins”.
- You want to end a problem, not destroy a relationship. Filing a lawsuit is almost always perceived as a hostile act.
- Domestic cases often take months (or years) to come to trial.
- Either spouse may appeal a Judge’s decision.
- You can continue to litigate even after a final decision is made.
- Emotion damage to parties and their children.
- Attorney fees and costs are uncontrolled
TIPS FOR EFFECTIVE MEDIATION
- Be prepared. Have all the information you need to address the issues.
- Be polite and be emotionally ready.
- Have a realistic view of the issues and a willingness to compromise.
- Demonstrate good listening skills.
- Have patience.