Resolving your Family Case through Mediation
At the Law office of David Scott, P.A., we are committed to resolving your case in the most efficient manner possible and with an outcome that is acceptable to our clients. At some point, the parties to a family law case will be required to attend mediation. While we are always fully prepared to take out clients’ cases to trial, many of our cases do settle at mediation if both parties are reasonable and willing to compromise.
What is Mediation?
Mediation is a way for people who are having a dispute to talk about their issues and concerns and to make decisions about the dispute with the help of another person (called a mediator). A mediator is not allowed to decide who is right or wrong or to tell you how to resolve your dispute. In mediation, you can try to find solutions that make sense to you and the other person in the dispute to resolve some or all of your concerns.
While the goal is to try to work something out, you may decide it would be better for you not to come to an agreement. Sometimes emotions may be driving the dispute which can make talking to the person or party with whom you are in a dispute difficult. A mediator can assist you in easing the way for communication. The mediator is there as a neutral person to help you focus on solving your dispute; however, the mediator is prohibited from providing therapy, counseling or legal advice.
What is a Mediator?
A mediator helps you talk with the party with whom you are having a dispute. The mediator does not make decisions for you. The mediator is a neutral and impartial guide to help you come up with possible solutions, stay on track, and clarify areas of agreement and disagreement. The mediator may help you and the other party see the conflict from each other side’s point of view.
If the parties’ combined net annual income is less than $100,000, the Court will appoint a state subsidized mediator to help the parties reach a mutually acceptable resolution. The Fee for this type of mediation is between $60.00 and $120.00. If the parties earn more than a combined $100,000 per year, they must utilize a private mediator. A private mediator is typically a lawyer, although this is not a requirement. Private mediators charge an hourly rate that ranges between $250 and $400 per hour. The chosen mediator must be agreed upon by the parties, but if they cannot agree the Court will appoint one.
What Happens in Mediation?
Court-ordered mediation must begin with an introduction by the mediator explaining the process and the role of the mediator. Among other things, the mediator should explain that the parties make the decisions, not the mediator. The mediator’s introduction is usually followed by an opportunity for you and the other party to describe your concerns. If your lawyer is with you at mediation, these opening remarks may be made by you, your lawyer, or both of you. After these initial procedures, how the mediation is conducted varies. The mediator usually will meet with both parties together to discuss the issues to help you work out your differences. The mediator may also meet with each party privately. This separate meeting is called a caucus . Generally, unless you give the mediator permission to repeat what you say in caucus, the mediator is prohibited from sharing what is discussed.
If you are represented by a lawyer, you and your lawyer will decide how the two of you will interact during the mediation. Some lawyers instruct their clients not to talk during mediation. If this is your decision with your lawyer it is fine; however, it is important for you to know that you are allowed to speak to the mediator at any time.
Eventually, the mediation will end in one of three ways, either: 1) the parties reach an agreement as to some or all issues - all parties (and their lawyers if present) must sign the agreement; 2) the mediator declares an impasse (because you, the other party, or both are unwilling to continue discussing resolution); or 3) the mediator, with the parties’ consent, continues the mediation session by adjourning for the day. If the mediator declares an impasse as to some or all issues, then you and the other party will have to go back to court to have the judge decide your case.
What are some advantages to mediation?
The benefits of mediation include the following:
The issues in your dispute are not decided by the Judge. In mediation, you are the “decision maker.” The mediator helps you discuss your concerns but cannot make decisions for you.
What you say in mediation is confidential. Unlike trials and hearings, which are held in public courtrooms, mediations are private and, with a few exceptions, confidential. If your mediation is court-ordered or conducted by a certified mediator, there are laws and rules which require confidentiality.
The mediator can help you overcome obstacles to communication with the other person or party in your dispute: Even if you have already tried to talk it out or negotiate with the other or party, a mediator can help you and the other party listen to each other and keep you focused. A mediator is there to help both sides communicate and explore possible solutions. If you and the other party get stuck, the mediator can sometimes help restart the conversation in a new way and help everyone take another step forward.
Mediation agreements are enforceable. If you reach an agreement in mediation, that agreement must be put into writing and signed by the parties. The written agreement becomes a legally binding document (contract), which is enforceable by the court.
A mediated agreement allows you and the other person or party to reach flexible solutions to your dispute. Mediation provides you with an opportunity to be creative with your solutions. If both sides agree, you can reach a settlement agreement specific to your individual needs. Mediation is different from litigation (a trial), where the judge makes a final decision. With mediation, both sides can “win,” this is called a “win-win” situation.
Mediation is not a trial nor an arbitration. In a trial, the parties present evidence and argument so a judge decides the outcome of the dispute. Likewise, in arbitration, the parties present evidence and arguments so an arbitrator or panel of arbitrators decides the outcome of a dispute. In mediation, the mediator assists the parties as they talk about their dispute to help them find and explore mutually acceptable resolutions of their dispute. If you reach an agreement at mediation, you do not have to go to trial or arbitration.
Mediation can save time and costs. Since mediation is a discussion between the parties, it can be much quicker than the formal trial process. Thus, it may also cost less than going to court - in both dollars and stress.
You know what you have agreed to in mediation instead of gambling with what the judge may decide if you go to court. If you resolve the dispute in mediation, you are not gambling on what the judge might decide. In a trial, the final decision will be made by the judge. It is uncertain what decision will be made at trial, but you will be bound by that decision whether you agree with or like the outcome of the trial. At mediation, the parties make the decisions.
Mediation is an opportunity to gain a greater understanding about why the dispute arose. In mediation you are talking with each other, the mediator, and your attorney if you bring one. This interaction promotes a better understanding of the actions that lead to the conflict. Sometimes when the parties understand the “why” of the other person’s actions, it helps create a desire to resolve the dispute.
Please contact attorney David Scott to discuss your family law case and options for an efficient resolution of your dispute.