The Many Paths to Family Mediation
Who makes the first call to a mediator, and when?
If you are reading this article, chances are that you have heard about family mediation, but perhaps you are unclear about exactly when it comes into play. In this article, we will discuss some of the many paths to mediation for couples approaching divorce.
Let's start with some divorce basics. While the requirements to effectuate a divorce differ somewhat from state to state, the basic elements remain similar. One party must file a complaint or petition with the court, legal notice must be given to the other party, decisions must be made as part of an agreement, and finally a decree of divorce will be signed by a judge. While the particular requirements for these steps will vary depending on where the parties file, the meaning and sequence of these steps are pretty standard for most of the U.S. This may sound simple enough, but we all know that divorce can become complicated. Even the most amicable clients eventually reach obstacles that must be traversed. These sets of obstacles are as original as the couples who encounter them, and for this reason, their mediation experiences are unique as well.
Often, the parties will be required to participate in court-ordered mediation. Let’s say that one of the parties has filed a complaint for divorce and given legal notice to the other party. To consider mediation, we will skip right to step three, a divorcing couple will need to settle financial issues and/or child custody issues. If the divorce is contested, meaning the parties can’t agree on these matters on their own or with assistance from their attorneys, the judge may order mediation before the parties can present their case to a judge in court. Overall success rates for court-ordered mediation can be very high. However, even if the parties cannot agree on all of the issues, mediation may still be successful if parties achieve a partial agreement on some issues, leaving fewer matters for the court to decide.
Amicable parties may be able to begin the process on their own, (and call in a mediator for the tougher issues.) Let’s consider divorcing couples who do not wait until a judge orders mediation to begin working on a settlement. Parties may choose to cooperate in decision-making on their own when they communicate well and are up front about both the facts of their circumstances and their expectations. These couples will forge ahead to achieve what is sometimes referred to as a kitchen table divorce. Such an approach can conserve financial resources and avoid adding unnecessary stress in uncomplicated situations. If the parties run into roadblocks, they may seek a mediator’s help. The parties may ask the mediator to help iron out just those few issues, and then draft a document which lays out all the points of the parties’ agreement. Although a mediator may help these unrepresented parties anywhere along the way, it is most common for the mediator to enter the picture once a complaint for divorce has been filed with the court.
One or more parties may retain an attorney. Because retaining an attorney can be too expensive for some, not every person will hire one. Therefore, divorcing couples may come to mediation with only one, or both or neither party represented by counsel. It is important to understand that while a family mediator may be an attorney, (and they often are,) the mediator does not represent either party in mediation. This means that even when the mediator may perceive an advantage to one of the parties, he or she must not provide legal counsel. When a party hires an attorney for legal representation, that attorney is obligated to counsel just the party who retained him or her. And, although a mediator will be able to explain the requirements for the agreement, only an attorney has the freedom to advise the client about the best course to take.
Attorneys may initiate mediation. Attorneys for the parties may also counsel their clients to mediate, work with opposing attorneys to find and schedule a mediation session, and even accompany and counsel their clients during mediation. Although the represented parties must shoulder the additional costs of attorney fees, there can be significant benefits to the parties who are able to have counsel present. Attorneys bring their experience in family court with them to mediation and can protect their clients from conceding more than is fair. They may also be able to help their clients understand when they are asking for more than any judge would approve. After all, even if the parties come to an agreement, the judge must approve it by signing a decree of divorce.
Mediation can be useful before a divorce becomes inevitable. As we mentioned above, when parties come to family mediation, the issues they must address are as varied as the parties themselves. Above, we’ve outlined just a few of these, but we’d like to include another. Where parties are not to the point of initiating a divorce action in court, they may still desire to have a written, formalized agreement concerning parenting, finances, or some other issue. The parties may choose not to use such an agreement in court unless circumstances require it. In these instances, mediation can provide some peace of mind and an opportunity to rebuild trust while keeping the details of an agreement out of the public record and allowing parties to explore alternatives to divorce.
In the last series, we tackled issues that pertain to online family mediation, but also family mediation in general. If you would like to learn more about the why’s and how’s of family mediation, particularly in an online setting, please check out our blog page at RedwoodMediation.com. https://www.redwoodmediation.com/blog
Family law isn’t just about divorce. It includes paternity, support and parenting time, elder care and more. Mediation is a tremendously helpful tool for our Redwood Mediation clients. We invite you to reach out to us at Redwood Mediation & Law to learn how we may be of help to you with family mediation services. https://www.redwoodmediation.com/