Mediation in family law cases – What to expect

Virtually every family law case is settled in mediation. I assist my personal clients through the mediation process, and other times I serve as the mediator – where I assist two parties in resolving their differences. On some occasions, two parties even will hire me to serve as their mediator wherein they do not hire attorneys themselves. All ways are possible to resolve cases, but I tell everyone resolving your case in mediation is always in everyone’s best interest. A phrase most in the legal community have heard me say is a bad agreement at mediation is better than a good decision at court. Why is that? A good decision at Court simply means a Court of Appeals will not overturn the Court’s decision. And in family law cases, Judges are left with wide discretion. The good decision may be entirely against your interests and in favor of the other party. However, a bad agreement at mediation has the most important word in there – agreement. It is something that both parties have had to grit their teeth and sign, but ultimately they were in control of their outcome.

I tell clients and those in mediation that you do not want to leave your personal issue up to the Judge. If you peel back the layers of the onion, the judge will know the absolute least of anyone about the case he is deciding. First, you and the other party know the most about your case. The two of you were in a relationship, you know each other lives inside and out. However, you were unable to resolve your differences and needed to seek out the guidance of a lawyer. Your lawyer will be the next person who knows the most about your case. You speak to them candidly, share with them evidence, and inform them of the case. If your lawyer and the other lawyer cannot resolve the issue, we come to the third layer of the onion, your mediator. They will know the third most about your case because you will spend the day with them, speaking to them candidly, your attorney will send them preparatory information to make them aware of the case before the mediation even begins. But if it is not resolved in mediation, we go to the inner core of the onion, who will know the least about your case – the judge. That is simply because based on rules of evidence and time constraints, and just the fear of testifying, the Judge will only receive a small portion of what you hope to share with him. Every client walks away from court wishing they had said one thing more. So the Judge is going to hear your life story in a couple of hours and be expected to make a decision. And the Judge will likely make a good decision that will be upheld on appeal. But you will not have been part of the process of resolving your dispute. Never leave it to the Judge.

So what is mediation like? It is informal. You will be in one room with your attorney and the other party will be in another room with their attorney. Dress code is casual. Atmosphere is to be relaxed. You can have a drink with you or a snack. There are no rules of evidence, you will openly speak to the mediator, who goes between rooms with information and attempting to bring those parties to an agreement. What is said in each room is generally kept confidential. The mediator can never be called into Court to testify to what was said in a room. All in all, if you have made it to mediation – you should attend the setting with the notion that you intend on resolving your disputes that day. Assuming you have reached agreements, the mediator will draft the settlement documents and you will review, make edits as necessary, and finally sign the mediated settlement agreement. The mediator will file these documents with the court and within a few days the Judge will sign off and your dispute will be resolved.

This article is for informational purposes only and does not constitute legal advice.