WHAT IS MEDIATION?

Many attorneys, mediators, and judges agree that mediation is often your best day in court. Why? During mediation, the parties have greater control over the outcome of their case which is facilitated by a "neutral" mediator who strives to help reach a settlement without the need for costly and stressful litigation.  Many people have never been involved in a lawsuit.  A divorce is simply a lawsuit, a lawsuit among spouses to dissolve their marriage, to divide the marital estate, to provide for the custody and support of minor children, to provide for support of the economically disadvantaged spouse, and to allow the parties to resume the rights and obligations of unmarried persons.

So what is Mediation?  Mediation is a form of Alternative Dispute Resolution (ADR) that is now required in most  states prior to taking a case to trial.  In mediation, the parties in dispute typically remain in separate rooms, with or without an attorney, while a neutral party - the Mediator - assists the litigating parties and their attorneys in reaching a settlement without the need for extensive litigation.  The Mediator is usually well informed in advance of mediation of the facts of the case, the demographics of the parties, the issues at hand, and the position each party takes against the other.  This is a relatively simple concept, but a concept that is often misconceived.  Below are some of the notable misconceptions explained.

• The parties and attorneys all sit in the same room where they yell and scream at each other while the mediator acts as a referee.  As stated previously, most modern family law mediators have the parties remain in different rooms or take part in virtual mediations to lessen the tension and emotions that arise from family law cases. The mediator takes a caucus, or private approach by which he or she takes adequate time with the parties (and their attorneys) individually and then takes demands and offers back and forth throughout the mediation until hopefully the parties reach a settlement.  As the mediator meets with the parties individually, the mediator offers his or her insight as to whether demands and offers are reasonable and discusses potential outcomes if a judge were to decide the issues.

• The Mediator provides legal advice. NO! Mediators are neutral and are very useful in facilitating a settlement.  In most cases, the litigating parties have competent attorneys that provide sound legal advice to their clients.  This might lead you to ask why a mediator is necessary.  In short, sometimes it takes the neutral's observations, lack of bias, experience in practice, personal knowledge of the courts, and evaluations to further convince the parties of why mediation is the best day in court.

• The Mediator will decide my case.  Mediators are not decision makers and the outcomes of mediation are not binding on the parties.  Further, you do not have to agree to anything at mediation.  However, you need to give a good faith effort to make all attempts to reach a resolution.  In the event you reach an agreement and sign a mediated agreement, there could be legal consequences if you choose to disobey the agreement without good cause.  Importantly, you do not waive your right to a trial just because you mediated your case. 

• If I agree to a term at mediation, but do not settle, it will hurt me in court.  Mediation is private, voluntary, and the discussions are inadmissible in court.  Additionally, the mediator cannot be called to testify at trial.  You have the right to tell the mediator facts in confidence and the mediator will keep those facts confidential.  Likewise, you can relay facts to the mediator that you would like the mediator to present to the other side.  In any event, the discussions in mediation are off the table for trial and is another reason that mediation is your best day in court. 

• Mediation is expensive.   In comparison to taking your case through all of the steps of litigation and through trial, mediation is very inexpensive.  A typical full day of mediation costs each party around $1,200.00 plus their attorney's fees.  Taking a case to trial can cost well over $15,000.00 in attorney's fees, deposition fees, expert fees, and other litigation costs. Trial should be the last resort at ending your case.

If you and your spouse are contemplating divorce or find yourselves in the middle of costly litigation, call Craig Holloway Attorney at Law, LLC o discuss your case, or click the link below to schedule your mediation today.