The Truth - the Winning Argument for Your Case

8 Aug. 2012

Mediation: An Alternative Approach to Family Law Litigation

Posted By The Buncher Law Corporation

For some, family law litigation doesn't fit the bill. Bringing an action in the family law courts can be costly in more ways than one: it can be expensive, it can be time-consuming, and it can leave you feeling out of control and intimidated by the legal system. When kids are involved, these costs can multiply quickly. This is why family law mediation is so effective and rewarding - it gives you the ability to take back control over your case and your life.

What is Mediation? Family law mediation is an alternative to litigation, and can help you and your spouse resolve your case quickly and efficiently. While a mediation does not lead to guaranteed settlement, a trained mediator can help you and your spouse issue spot and problem solve so that you can conclude your case.

What Types of Cases Can Be Mediated? In the family law arena, any type of case you and your spouse might have can be a candidate for mediation. A mediator can help you resolve your dissolution or legal separation action, and can also work on issues relating to custody and parenting plans. You can choose to have your entire case mediated, or you can elect to submit a single issue to the mediator.

What is the Role of a Mediator? A mediator stays neutral throughout the mediation process, and does not advocate for either party. A mediation is conducted as a standard business meeting might be: the mediator meets with you and your spouse together, an agenda is set of the issues that need to be resolved, and you and your spouse are able to openly negotiate, with the benefit of the mediator's advice and counsel. The mediation process is an educational one. The mediator can assist in explaining the applicable law, identifying the need for more information (for example, in cases where the value of an asset might be an issue), and drafting the ultimate agreement. The mediator can walk you and your spouse through the dissolution process, answer questions, and ultimately give you back control over your decision-making. During the mediation process, the mediator can also caucus with each party individually. Think of this type of private meeting as your opportunity to negotiate and consider settlement, in a non-pressured way.

If I Choose Mediation, Do I Still Need an Attorney? Your mediator will not make a formal appearance in your case. That means that you and your spouse will be considered by the court to be self-represented, and you will enter into a joint retainer agreement with your mediator that outlines the services she will be providing. However, you and your spouse can elect to retain independent counsel to review any agreements before having those agreements entered by the court. In this way, each party is able to ensure that the agreement reached in mediation is in their best interests.

How Long Does a Mediation Take? A mediation can take as little, or as much, time as is necessary to bring your case to a close. This will largely depend upon the issues presented in your individual case. A mediation session can be scheduled with your spouse to fit your needs. It is important to note, however, that retaining a mediator does not change the basic court filing rules. For instance, in an action for dissolution, you cannot obtain a divorce before the six-month jurisdictional mark has expired. You can still enter into a full agreement before the full six months have passed, but the court will not be able to adopt your agreement and enter your dissolution without waiting for that full period to elapse.

What Does a Mediation Cost? A mediator is jointly retained by you and your spouse. This means that you each enter into an agreement with the mediator when the case begins, and you each pay one-half of the mediator's hourly rate. This usually means that both parties have a financial incentive to work efficiently and openly with the mediator to resolve the case. Unlike in traditional litigation, where one party can unilaterally request court action or drive up fees with unreasonable argument, the mediation process allows each party to keep control over the case, and its costs, by encouraging collaboration.

Am I a Good Candidate for Mediation? Mediation is most effective when you and your spouse have made the decision to focus on resolving your case rather than escalating it. Both parties should be willing to work through the issues in the case, and committed to problem-solving. The mediation process is transparent, which means that both parties work with the same amount of information. The mediation takes place on a level-playing field. If you understand the issues in your case, have ideas about settlement, and feel strong enough to work with your spouse face-to-face on areas of disagreement, the mediation process is for you.

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