How Mediation Works

In this form of alternative dispute resolution, a neutral third party helps divorcing couples negotiate their differences – without going to court.

By Randall M. Kessler
October 16, 2015
How Mediation Works

Mediation is a form of alternative dispute resolution in which a neutral third party – known as a mediator, or neutral – helps parties negotiate their differences with an eye toward resolution and settlement. Stated another way, mediation is an informal, out-of-court process that includes rules, ethics, and a timeline by which parties can settle. There is no testimony or other formal means of presenting evidence during mediation, though it is a more structured process than a settlement conference.

Mediations are conducted by independent, third-party neutrals, whose purpose is to facilitate a voluntary agreement between the parties without necessarily rendering an opinion on the merits of the case. The mediator has no authority to force a settlement, but rather is to serve as a catalyst for dialogue between the parties. Those present at a divorce mediation can include the mediator, parties, family members, significant others, expert witnesses, and lawyers (although most often only the parties and their lawyers attend). Everything shared during the mediation is generally kept confidential – unless there is a threat of violence, child abuse, or imminent danger. Under these circumstances, the mediator has an obligation to report such conduct or abuse. If the parties do not reach an agreement at mediation, the right to a trial is still available; however, the mediator cannot be called as a witness.

A key advantage to mediation is that the mediator can explore the underlying background and emotional history behind a case far more than a judge can or would, allowing the mediator to get to the root of the underlying conflict. Additionally, mediation can provide an invaluable opportunity to get an unbiased evaluation of the case from experienced judges and family law  litigators, should the mediator fall into one of those categories.

The goal of mediation is ultimately to avoid the time and expense (emotional and financial) associated with litigation However, there is never a “one size fits all” solution, and each case must be evaluated on its own merits to determine whether mediation would be fruitful. Cases involving violent parties, bullies, or the opposite (“pushovers”) may not be appropriate for mediation or may not be ripe for mediation unless and until the parties are truly ready to appropriately mediate in good faith.

Mediation vs. Litigation

There are an abundance of reasons why mediation may be preferable to litigation. While litigation is a manageable and perhaps even a desirable forum for corporations and business people to resolve their disputes, their situation is not analogous to two individuals going through what is likely the most traumatic and stressful change of their lives.

Corporations typically have far greater resources and fewer time constraints to resolve disputes between themselves; a family is often just waiting in limbo for closure during their divorce or child custody matter, with the children left to suffer the collateral damage. Corporations, business people, or even car-wreck victims may never have to interact with their opponent again once their case is resolved – but families must continue to communicate on a personal level after the divorce settles, especially where minor children are involved. Therefore, it may be more beneficial in the long run for parents to try to reach an amicable resolution without the time, cost, and emotional toll associated with litigating.

In the majority of cases, families simply cannot afford the costs associated with long, drawn-out litigation. They also do not have the luxury of time, since children need to know where they will live, what school they will attend, etc. Also, parents still have to communicate with each other to some degree following the conclusion of the case, which becomes much harder – if not impossible – once spouses have squared-off in the courtroom. For better or worse, this is the system that families are forced into if they wish to get a divorce. Fortunately, mediation provides an alternative, allowing families to step outside of the system and resolve their disputes with less cost, time, and stress than full-blown litigation.

Aside from the time and expense savings, another reason that mediation may be a good alternative to litigation in family law cases is that it allows for a deeper examination of the root cause of the underlying issues that led to the marital discord in the first place. Mediation provides an opportunity to dig deeper into the background of the case, and for the divorcing couple and their lawyers to be heavily engaged in the settlement process. Such dialogue can affect how and when parties settle, and also the quality of the settlement itself. Ideally, it is an opportunity for the parties to address all of their desires in a more comprehensive settlement package than a court can offer. In the majority of family law disputes, it is better for parties to decide the outcome for themselves than to have a judge make the final determination. It also may give parties an opportunity to vent (hopefully while in caucus and not in front of the opposing party), which many need to do before being able to accept a final resolution and the termination of their marriage.

With regard to the quality and comprehensiveness of a settlement, there are many different terms that can be agreed upon through mediation that a court either cannot or will not address. For instance, parties can address and craft their own resolutions surrounding complex issues like tax exemptions, parenting time, division of property, timing and conditions of property sales, religious upbringing of the children, and almost any other issue arising out of the marriage. For child support and custody, the court does have the discretion – and the obligation – to ensure that any agreement on these issues is in the best interests of the children. But, because courts and judges tend to only deal with the “here and now,” the ability to mold and craft customized settlement terms in mediation is highly advantageous.

Of course, there are also situations in which mediation is not a better alternative to trial. For instance, some lawyers and/or parties may choose to use mediation as an opportunity to posture and “gain an advantage” over, or intimidate, the other side. In such cases, mediation likely will be unsuccessful and may even be detrimental to the ultimate outcome of the case, since it may create even more anger and frustration than already exists. If you and your lawyer sense that this applies to your specific case, then it might actually end up being more cost-effective and efficient to take the case to trial. Outside of these limited situations, however, mediation should be explored by both sides in good faith as a valuable facilitator of settlement.

When is Mediation Appropriate?

Mediation is rarely considered “inappropriate,” as there are many advantages to at least attempting it in good faith. In fact, mediation is becoming increasingly required by many Georgia judges in all contested cases: many judges now expect parties to have attempted mediation prior to appearing before them for relief.

Of course, there are exceptions to the general presumption that mediation is appropriate, including those situations involving domestic violence or those where one side is clearly not going to participate in the mediation in good faith. In such cases, mediation may prove to be a fruitless endeavor that may not even be worth the time and expense of attempting. However, the specific circumstances should always be evaluated in each particular case, as it may still be appropriate to hold an abbreviated mediation to test the waters and perhaps even learn something valuable about the other side. There is very little risk in this strategy, as you can always leave the session at any time without repercussion if the mediation is futile. Ultimately, the decision of whether or not to mediate should be based on case-specific facts, but generally speaking, it is typically advisable to at least attempt it.

Even if a party lives out of town and cannot afford to travel for mediation and trial, mediation can still occur with one party only being available by telephone. Of course, almost everyone familiar with mediation will agree that in-person mediation – which allows both parties to experience the true dynamics of the process – makes resolution more likely.

Must the Case Settle at Mediation?

The case does not have to be settled at mediation under any circumstances; in fact, a good degree of caution should be exercised prior to reaching a final agreement in mediation. In some cases, settlement may be a goal, but the primary goal may be simply to acclimate the parties to the process of mediation in anticipation of future settlement discussions. If the parties learn how to negotiate in good faith the first time around, there may be hope that they will do so again in subsequent interactions and possible future mediations.

Even if the process ultimately breaks down, it is likely that the client will have walked away with more information and insight into the other side’s position than would have otherwise been the case. It has been said that mediation provides the most “bang for your buck” in terms of learning about the other side. There may be a tremendous amount of insightful information gained at mediation that may allow for a far more enlightened case strategy, should settlement negotiations ultimately fail.

During mediation, it might become clear what the other side’s “hot buttons” are, which allegations they acknowledge, which items of property they covet most, and who their potential witnesses may be. Settlement via mediation can save a divorcing couple a great deal of money by avoiding the costly nature of litigation, and it can also spare them the inevitable emotional drain of trial.

The vast majority of people who go through a full divorce trial walk away from it with a strong disdain for the process. Keeping this in mind, it is usually in the client’s best interests to attend mediation in good faith and in furtherance of settlement. If that fails, regroup and discuss what was learned at the mediation and how that information can assist in the case – either in litigation strategy, or in future attempts at settlement.

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Graceful Divorce Solutions

This article has been excerpted and adapted from How To Mediate A Georgia Divorce (Institute of Continuing Legal Education in Georgia, 2015) by Randall M. Kessler. Written with input from many well-respected authorities on mediation, this book provides a good overview of the process. Kessler is the founding partner of Kessler & Solomiany, LLC, a firm known for handling complicated and complex family law matters. He has taught domestic relations at Atlanta’s John Marshall Law School since 2005, and is also the author of Divorce: Protect Yourself, Your Kids and Your Future.  www.ksfamilylaw.com

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October 16, 2015

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