What is family law mediation?
Mediation is an effective way to settle family law matters, including divorce, child custody, property division, and domestic support obligations. For mediation to work, the parties must be open to using and listening to a mediator. If the parties are willing to work toward an amicable settlement using mediation as the vehicle that takes them to the end result, the parties can avoid a long, costly litigation process. Furthermore, most parties find that the final settlement agreement achieved through family law mediation is much more acceptable and achievable compared to the terms a family court judge may impose on the parties through a final order.
Mediation does not utilize a judge to make a decision regarding how the issues should be settled. The parties choose an impartial third party to act as mediator. The mediator does not judge right or wrong but instead may offer suggestions, advice, or opinions at the parties’ request. The mediator does not have the authority to force either party to accept a settlement agreement. Rather, he or she acts as a buffer between the parties to facilitate open and honest communication that allows them to negotiate a voluntary agreement that settles their disputes fairly.
Mediation provides a private, confidential alternative for settling a family law dispute in court. What is said in mediation cannot be used as testimony in court; therefore, mediation encourages a greater depth of communication without fear that what is discussed will become public knowledge. This is the case regardless of whether the parties reach an agreement through mediation or proceed to a trial. Likewise, what each party discusses one-on-one with the mediator can remain private between the mediator and that party. Most family law mediators will meet with each party individually in addition to the joint sessions with both parties (if any). This is determined on a case-by-case basis depending on the needs and circumstances of the parties in the mediation.
If the parties are able to reach a settlement through mediation, the mediator may assist the parties in transforming the terms into a settlement agreement. In most cases, the parties both have attorneys who will draft a written settlement agreement for both parties to sign. Once the agreement is signed and accepted by the court, the agreement becomes enforceable unless the terms of the agreement are against state law or public policy, or are not in the best interests of the child or children.
The Pros and Cons of Family Law Mediation
Family law mediation is not the perfect solution for every situation. Most courts now require parties to attend at least one mediation session to attempt to resolve their issues while other courts make it a voluntary choice. This alternative dispute resolution method can save time and money for many couples; however, it will not always work. Furthermore, there are definite pros and cons of using this method.
Benefits of Using Family Law Mediation
- Mediation is typically less costly than litigating disputed issues.
- Mediation allows the parties to “get matters off their chest” and “clear the air” while discussing disputed issues. This can decrease stressful conflict that is often associated with a trial where the parties are limited in what they can and cannot say in open court.
- Mediation can help parties maintain a civil relationship, which greatly benefits any children of the parties, by encouraging each party to see the other person’s point of view as they discuss possible ways to settle their disputes outside of the courtroom.
- Mediated agreements provide more satisfaction for the parties due to the collaborative nature of the mediation process. Parties usually report a higher level of satisfaction with the terms of settlement, and parties find that following the terms of settlement is much easier and less stressful since the terms fit their family and situation rather than a “generic” visitation order, for instance.
- Scheduling the timing of mediation sessions is up to the parties rather than the court.
- The mediation process is more relaxed, making it easier to focus on what is truly important—resolving family law issues in a manner that benefits both parties and their family.
- Mediation allows for the use of creative and highly specified terms and solutions that address the unique issues and circumstances of the parties and their family.
Disadvantages of Using Family Law Mediation
- Mediation typically does not work in cases of domestic violence because the abused spouse is typically too intimidated to communicate freely while the abusive spouse continues to take on the role of the aggressor.
- If one party is timid, mediation can be one-sided. The imbalance in communication may result in an agreement that favors the more vocal party rather than one that is mutually agreeable.
- If mediation fails, the parties must still go through the expensive, time-consuming litigation process to resolve their issues. This can add stress to the mediation process, as both parties feel pressured to come to an agreement to avoid going to court.
- Because there are no “laws” in place as with a court hearing, you may not be as protected during mediation as you will be in a court setting.
- The mediator is not permitted to offer legal advice, even if the parties are not represented by an attorney.
- Hiring a mediator that is not an attorney may lead to problems drafting a settlement agreement that contains the proper language and which is drafted in a manner the court will approve.
Highly-Trained Mediators and Trial Litigators
Some of the attorneys of Hodges, Doughty & Carson, PLLC are trained mediators, in addition to being experienced trial litigators. Therefore, our attorneys can protect your legal rights and your best interest during mediation sessions and in a courtroom. We have the ability to act as impartial mediators for parties who desire to try an alternative to litigation. We also represent parties during mediation to ensure they are being treated fairly and any settlement reached is legally binding, just, and in the client’s best interest.
If you have questions about family law mediation, contact our office by calling 865-292-2307 or by filling out the form to the right. Our family law mediation attorneys are always available to answer your questions regarding the mediation process.
