Mediation: Know Your Options BEFORE You Litigate

JusticeWe are blessed in the United States with the greatest system of justice the world has ever known. That is not to say that our civil and criminal court systems are perfect, but it is to boast that our courts inherently aspire to provide fundamental fairness and justice to all within our borders.

In our system of justice, “family law” – the area of law that deals with divorce and child custody matters – falls under the civil law branch of our justice system. Putting that in context, a family which finds itself in the midst of a divorce automatically finds itself in a competitive and adversarial civil law realm which views each issue as contests to win – not challenges to be solved. Imagine that every individual going through a divorce is forced to put on boxing gloves and climb into the boxing ring at the beginning of every divorce or custody case regardless of whether combat will be necessary.

Combat is our automatic default in family law matters when a family law case begins. In other words, as our system currently exists, every divorce and custody matter is unthinkingly thrust into a legal battle – into a legal competition – whenever a family case is initiated. As a consequence, the cut-throat manner in which most civil litigation seems to occur out is initially carried over into family law.

. . . And automatically forcing every divorcing family into an initial posture of battle makes as much sense as requiring that every individual with any type of broken bone be prepared for surgery and wheeled into an operating room . . . before determining whether a cast might be more appropriate! Although a surgeon may ultimately be called upon to set a bone if the situation is serious enough to warrant cutting into the patient, a divorcing couple may also ultimately need to resort to a competitive approach to their conflict to fight for the best result with a judge or a jury; however, I strongly believe that folks should explore all creative options before Map-questing direction to the courthouse to resolve their divorce or custody matters.

MediationWhat is Mediation?

In general, mediation is a method of resolving conflict between two or more parties. Specifically, in family law cases, a neutral third party, a mediator, assists the parties to negotiate a settlement once a divorce or family law case has been instituted.

In a mediation, the parties are typically placed in separate rooms with their respective attorneys. The mediator then shuttles back-and-forth between rooms throughout the day to help the parties understand and clarify the other’s desires and to help the parties evaluate their risks if the case does not settle . . . in other words, the mediator generally helps the couple understand the financial and emotional impact of continuing the lawsuit and their march towards the courthouse if no settlement is reached.

There are four possible outcomes from mediation, three are positive and one is negative:

Positive
Outcome #1 – the parties settle their entire case!

Positive
Outcome #2 – some of the issues are settled.

positive negative Positive
Outcome #3 – the mediator declares a “recess.” Just as the word harkens back to the positive reprieve of childhood, the term “recess” in the mediation context means that – although the parties did not reach any agreements at the end of the mediation day – the mediator believes that the parties made good progress and believes that they are on a positive path.

#4 – The Only
Negative Outcome – the mediator declares an “impasse.” The only negative outcome for a mediation occurs in the event that the mediator believes – after sufficient time has been invested in the mediation process – that neither party is any longer willing to continue exploring creative solutions to their conflict . . . at which time the mediator ends the mediation and declares that an impasse has been reached.

Although there are no formal statistics that track the success of mediations in family law matters, it is widely accepted that mediations settle approximately 80% or more of all conflicts that avail themselves of the mediation process. Perhaps more importantly, research has proven that mediation is a more desirable way to resolve conflict in a divorce because it helps families focus on their children’s needs, better understand the underlying issues, and find the most fair settlement possible while ensuring a custody agreement that is best for the entire family.

Mediation affords families the ability to approach its own particular circumstances, creatively brainstorm on a wide range of options, and better control the process by crafting tailor-made agreements they believe are best for their family. In contrast, our court system simply does not have the time or resources to treat every family and its members as unique. As a consequence, litigation imposes a rigid framework that results in very similar outcomes . . . most often without finding the best outcome for the particular family. Good outcomes can happen, but it seems that in those instances, the families are merely resilient in their flexibility to adjust to the predictable outcomes. In short, litigation outcomes are a bit like drivers license photographs – the government takes control of the activity, snaps your photo without determining your best features or your ‘best side’, or without spending enough time to place you in the best light. You might luck into a good picture, but most often you spend years forced to accept the end product.

This post was written by Christopher M. Lake.

Christopher M. Lake

“I take pride in the fact that my greatest referral sources have been my former clients. I hope that’s because my clients know that we try to be intelligently aggressive about achieving their goals while being as cost effective as possible.”  — Chris Lake