What is mediation? Mediation is a philosophy and a way to practice family law. Even as litigators, zealously representing the best interests of our clients, we believe that those interests can be best served through a mediative or collaborative approach.
There are two different forms of mediation that may be used in a family law situation: facilitative mediation which should begin in the early stages of a divorce process, and evaluative mediation which is usually ordered by the Court after the completion of discovery in the hopes that the parties will settle their case without the need for a trial. Both forms of mediation involve the appointment of a neutral third party, usually a family law attorney, to assist divorcing couples reach a settlement of their outstanding issues. Mediation is also extremely effective to resolve issues that may arise after your divorce.
Mediation is a process whereby the parties involved retain control over the outcome of their case. Division of property, financial arrangements, and plans for the children are all important considerations for a family in transition. Working with a neutral trained mediator, the parties can resolve their own conflicts during and even after divorce, often coming up with creative solutions that address their family’s particular needs and interests. The mediator does not take sides or make decisions; the mediator provides an environment and a process to guide the participants toward a satisfactory resolution of their issues.
Keep in mind that mediation has many benefits.
It is possible to use mediation even before you file a case with the Court. You and your spouse may contact a mediator who will set up several meetings together so that he or she can facilitate your communication to work toward resolution. With mediation, you may also retain an attorney who can offer legal counsel through the process and who will ultimately prepare the legal documents, including the Judgment of Divorce. Henry Gornbein is a specially trained family, divorce and custody mediator.
Even if you have filed your case already, mediation remains an effective and efficient tool to help you reach a final settlement. All domestic relations cases are subject to facilitative mediation, except those involving domestic violence, and most judges will require the parties to attempt to mediate prior to holding a trial.
A Workable Model
Divorces rarely go to trial. Too often, this is because judges do not want to hear divorces; they are uncomfortable listening to people’s “dirty linen;” and you, as a divorcing party do not want to incur the financial cost nor endure the emotional expense of such a trial. In addition to the financial and emotional costs, in our view, there are several other reasons why most divorces should not be tried. Your “day in court” is often interrupted by other court matters, making it impossible to have a steady flow of testimony from start to finish. Witnesses may be called to court, wait for hours before being called or not even be called to testify that day. Furthermore, judges often are not familiar with the facts of the case, and may not have the time or interest to consider the specific needs of the parties, such as the tax ramifications of a particular division of property. This can result in the judge simply “cutting the baby in half,” leaving everyone unhappy. Experience has taught us that settled cases have more favorable outcomes.
If you retain a mediator prior to filing for divorce, the facilitative mediator will give each party “homework” to obtain full disclosure of the parties’ assets and liabilities, as well as employment and income information and budgets. The mediator, working with the parties directly, will learn about the parties, their ages, health, education level, about their children and the issues that brought them to the table causing the breakdown in the marital relationship. In a later stage mediation where a case has been filed and attorneys are already involved, prior to selecting a mediator, discovery has been completed. All parties know what assets and liabilities there are, and what the marital estate consists of. The mediator will have each party prepare a mediation summary in advance which will contain all of this pertinent information and will include a statement of what the party is seeking as a settlement.
The mediation process may involve several meetings over time (especially early stage facilitative mediation) or one session. The sessions can last anywhere from two to four hours. Cases that are closer to settling and where the parties are particularly motivated to bring their case to a conclusion may last longer.
A Typical Later Stage Mediation Session
It is helpful to know what you can expect during mediation. Your case has progressed to the stage where discovery is completed and your trial date is approaching. The mediator has been selected, mediation has been scheduled and now you will work toward resolution in mediation. If you have chosen one of the family law attorneys at Family Law of Michigan as your mediator, or if we are representing you in your case, typically, the mediation session will begin with the spouses coming into the conference room with their attorneys. With all parties present, the mediator will speak generally about his or her philosophy of mediation and will lay down some ground rules. One of the most important rules to enforce for a successful mediation is to discourage name calling and personal attacks, as this is counterproductive in mediation. Specifically as mediators and attorneys, we also believe that solutions should be tailor-made to the facts, and that creativity is often necessary to arrive at these solutions.
Next, the mediator may discuss the specific summaries that have been submitted, noting the discrepancies and trying to obtain agreements on as many issues involving assets and liabilities as possible. Knowing where the differences still lie, the mediator will then provide each party, along with his or her attorney, the opportunity to speak to the group. The next stage involves assigning each party and respective attorney to separate offices, having explained to them in advance that everything discussed is confidential. The mediator can then go back and forth, practicing what we refer to as “shuttle diplomacy.” In this private setting, each spouse has an opportunity to be heard, to speak freely about what is most important to him or her, and to present his or her perspective on the issues providing the mediator with insight as to the hurdles being faced for settlement. The mediator, attorney and spouse can discuss settlement ideas. Using this approach then, the mediator can present settlement possibilities that may be the mediator’s own ideas, the party’s ideas, or a combination. In situations where little progress is being made despite efforts and many suggestions, the mediator may speak privately with the two attorneys. The mediator will discuss ideas and solutions which the attorneys relay back to their clients.
In the event that verbal settlement is achieved, it is important at this point to create a binding agreement which cannot be changed later on. The verbal agreement may be reduced to writing or put it on tape with everyone agreeing.
In situations where the parties are getting close but no settlement is reached, the mediator may suggest a proposal to the separate parties that might work. If they seem agreeable, the mediator may suggest to them that he will go to the other side and test the waters with this proposal, not telling the second party that the first party is willing to accept it. If the second party accepts, then a settlement is reached.
In certain instances, no settlement is achieved, but progress is being made. Perhaps there is a disagreement over values and there is a need for more appraisals or other information before a settlement is possible. In this situation, the mediation session may be adjourned and a new date for a second session be set. In the interim, the parties are encouraged to think about the ideas that have been on the table, with the goal of fine tuning them or updating certain evaluations with additional information.
In circumstances where a settlement is not achieved, the mediator will write a report which is submitted to the attorneys but is not read by the judge. In many instances, the mediator’s report is based upon how the mediator believes the case might end up after trial, applying the law and facts. This next step has often been effective in achieving a settlement short of trial.
Successful mediation involves compromise and concessions by both parties. Neither party will be completely satisfied with the result, but by also pointing out the advantages of mediation over trial, the spirit of cooperation is enhanced. During mediation it is important to remember the significance of the parties’ input, and to point out that a result achieved through communication and mediation has more of a chance to work than one forced upon the parties involuntarily through trial.