Mediating Family Law; Resolving Your Case on Your Terms or Not.

I will be mediating a family law case, or rather agreeing to mediate a divorce, custody and property division case in the near future.  Mediation is a process whereby the parties agree to meet and attempt to resolve all issues prior to going to trial or without having to go to trial.

In a mediation the parties agree to hiring a third-party, typically another attorney or retired judge, to “hear” their  case.  Now the mediator is NOT the main authority.  In fact, the mediator cannot compel either of the parties to do or agree to anything. The mediator’s role is to point out the strengths and weaknesses of each sides case and to try to find common ground.  Sometimes the mediation is based on reason and logic and sometimes it is based on emotion or just some number someone is trying to reach. Almost anything can be mediated, though a rule of thumb is to not mediate when not prepared factually, legally (research wise), or with an abuser.

Pros:

  • The parties have the ultimate say in the final outcome.
  • Mediator gets to hear “everything,” so a party may have their “say.”
  • It is appeal proof. (unless fraud involved)
  • It can save fees and expenses.
  • It can reveal strengths and weaknesses in a case.
  • It works.  (approx 90% of the time)

Cons:

  • If there is no agreement there is no settlement.
  • Mediator’s opinion is non-binding.
  • It can add a layer of expense.
  • It can be frustrating.
  • It may not work.

Mediation is not a silver bullet to end litigation. It is just another implement in the tool box of resolving and litigating cases.

Is mediation right for you?  Almost any matter can be mediated. Speak to your attorney for more information.

Matthew Thompson is a family law attorney and believes in the mediation process, though it may not be right in every situation.

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