Pros and Cons of Mediation for Divorce and Paternity Cases
We receive many calls from people, perhaps like yourself, who want to know
whether “Mediation” would be right for their
child custody/support case. Mediation can be successful under the right circumstances; typically,
where the parties are friendly and open with each other, and are in agreement
as to how to handle all or virtually all issues. However, in many cases,
mediation simply will not work. Trying to force it will only cause delay,
aggravation, and wasted funds. In those cases, it is often better for
one party to retain his or her own attorney, and that attorney, while
representing that client, helps to guide the process along, to a completion.
A mediation is, in essence, where both parties jointly retain and pay one
attorney to oversee the entire case from start to finish. That party will
explain the process, explain the applicable law, provide all needed forms
and documents for the parties to sign/serve on each other, file them,
and assist the parties in resolving all issues (child custody, child support,
spousal support, division of assets and debts, etc.). That attorney will
also oversee the drafting of a final Stipulated Judgment and all required
forms to resolve all issues once and for all.
Next, here are some of the pros and cons of mediation to help you determine
whether it is right for you.
Pros of Mediation:
- There is no mystery. Both parties are present for the discussions and know
exactly what is being discussed.
In the right situation, a mediation can be the least expensive option.
This is for reasons including that there is only one attorney involved for
most of the process, and costly litigation is avoided. [Note: After the settlement
agreement is drafted and agreed upon, both parties are recommended to
have a short consultation with their own independent attorney who will
sign off on the agreement. This ensures there is no misunderstanding and
makes the agreement more enforceable.]
- Where the parties are agreeable on all or nearly all issues, the process
can be sped along.
- Mediation can promote good communication and continued good relations between
the parties, which is particularly important where there are children involved.
Cons of Mediation:
- The attorney handling the mediation is jointly retained by both parties.
Thus, he or she cannot be one party’s advocate over the other, e.g.,
advising one party how to get an advantage over the other, or that the
party should not take a deal that is being offered. The attorney can only
explain what the law generally is as it pertains to any particular issue.
The mediating attorney must remain neutral.
- Either party can decide at any time that he/she no longer wants to proceed
with the mediation, for any reason. If that happens, the attorney that
the parties had used in the mediation will not be able to represent either
party any longer. Thus, both parties will need to find (and pay) entirely
new attorneys. Thus, to an extent, they will have to start over.
- Cases involving complex property issues, large estates, disputes over child
custody and/or decision making, a history of abuse or domestic violence,
or where one or more parties is highly emotional over the break up, are
usually unsuccessful in a mediation setting. The same is true where one
of the parties is against moving forward with the case in the first place
and wants to “stay together”.
It is important to note that many of the “pros” of a mediation,
such as keeping costs and animosity to a minimum, can be accomplished
via a traditional divorce or paternity case, if the parties and counsel
are committed to remaining cordial and reasonable. In this situation,
in lieu of sharing one attorney as a mediator, one or both parties can
elect to retain their own counsel to attempt to negotiate an expedient
settlement, and draft the necessary court documents.
Here at The Buncher Law Corporation, we can tailor how we address your
case to your particular situation. We can also help you to figure out
whether mediation is right for you. Contact us today for a consultation.