Helping Clients Resolve Their Divorces Through Mediation
In every family law case there are efforts to settle the case without court intervention. The court encourages these efforts, and one very effective process to reach settlement is the process known as mediation. The parties are required to mediate in almost all cases before the court will hear a final hearing on the matter. We therefore do a lot of mediation.
In mediation the parties, with their attorneys, will gather with a mediator. The mediator is usually a practicing attorney who has been specially trained to facilitate negotiations. The process usually takes between two and four hours (although I've been in mediations that have taken more than 10 hours).
The Mediation Process
The process starts by the parties and their attorneys gathering into a conference room and introducing their case to the mediator. Not everyone feels comfortable with this first aspect of mediation, and I find it to sometimes be a non-essential part of mediation. Therefore, the introductory phase of mediation is often bypassed and we move directly on to what is called the "caucus" portion of the mediation. We do not bypass introductions in the majority of cases, but in a large minority of cases we do. So if you do not feel comfortable with the introductory phase, please just let me know. The introductory phase can just as easily be accomplished in a caucus session.
After the introductory phase of mediation we move to caucus, which means the parties, with their attorneys, will go into separate and private rooms. The mediator will then "caucus" with one side in their room. This caucus session may take more than an hour (sometimes less, sometimes more). The mediator will then caucus with the other side. The process will continue in this fashion until we have reached settlement, or an impasse in the negotiations. Sometimes a second mediation will be scheduled, but sometimes this will be it for mediation. During the mediation process, the mediator may request to speak only with the attorneys, or may request to speak just with the parties. It depends on what the mediator thinks needs to get done to move the process forward.
Who is the Mediator?
The mediator is a third-party neutral. He or she is not the judge, and the mediator will not be giving a report to the judge. What you tell the mediator is confidential and will not be admissible in any future hearing in the matter. In caucus we can instruct the mediator that he or she is to keep everything we say or reveal privileged, or we can give the mediator permission to reveal certain information to the other side. It is sometimes advantageous to reveal some of our cards in order to move mediation along. Sometimes, however, you do not want to reveal this information before you have to.
The Purpose of the Mediator
At mediation it is usually best to let your attorney do most of the talking at the introductory phase, and at any phase where the other party is involved. In caucus however, feel free to talk to the mediator. Keep in mind however, that convincing the mediator of the justness of your case accomplishes nothing, as the mediator will neither be judge nor jury in your case. The mediator simply attempts to facilitate the settlement of the case, and has no stake in the outcome of the case otherwise.
The mediator cannot force you to settle, or force you to do anything. Only you and your attorney can agree to reach settlement or not at mediation.
A weakness of the mediation process is that the mediator's job is to reach a settlement, and the mediator has no interest as to what settlement is reached. Reaching a bad settlement is worse than reaching no settlement, so keep this in mind as to where the mediator is coming from. The mediator is trying to settle the case, and does not have to live with the consequences. You are there to try and get a good settlement to meet your needs. Therefore, your motivation to be there and the mediator's motivation to be there are not the same. The mediator will help you settle your case, but you need to make sure the mediator does so in a manner that is consistent with your needs.
Preparing for Mediation
As to how to prepare and approach mediation, the first thing you need to do is realistically assess the strengths and weaknesses of your case, understand the risks if settlement is not reached, and know what you want out of it as a settlement. Go into mediation with an understanding of these things and you can comfortably negotiate through the process. Mediation does not exist in a vacuum. The results of mediation largely depend on how each party perceives the strengths and weaknesses of their case and their understanding of the risks in the case. You need to go in putting on an air of confidence, and the perception that you are strong willed on the issues that you want resolved. Do not put out signs of weakness or fear. Posturing is something that both sides do in mediation, and it can be very effective in moving negotiations in a more favorable light towards what you want to accomplish.
This may be your first mediation session. It is important to have an experienced Atlanta divorce attorney there with you because they have been through this many times before. That attorney will assist and guide you through the process, as you will assist the attorney. After all, who knows how the other party thinks better than you. Working together you can form a very effective negotiation team.
Does Mediation Really Work?
Yes. I am always surprised at how many cases we successfully settle (meaning a good settlement based upon the relative strengths and weaknesses and risks of the case). It is not a good settlement if you just settle to be "nice" or to get it done. From enormous experience, settling from these motivations produces nothing but headaches and literal nightmares post-divorce. It is not something that you want to do. But yes, good settlements much more often than not come out of the mediation process, even in cases I did not think we were going to be able to settle. It is surprising what happens when you take two parties, partner them with good attorneys who help the parties see the case with a more practical perspective, and, out of nowhere, a good settlement is reached! So the process can and does work. Many more cases than not will settle at this stage.
However, not all cases settle at the mediation stage, and not all cases should settle at this stage. We will not settle at this stage unless doing so is right for your case. Some parties remain incorrigible and just won't settle. Some parties should remain incorrigible and just not settle because what is being offered is simply not what that party should settle for. All that is required in mediation is a good-faith effort. If it does not work, then we move to prepare for trial.
Mediation V. Trial
The mediation process and trial are intimately linked. Parties settle at mediation because of the risks and costs of going to trial. It motivates them to find compromises. Therefore, reaching a good mediation settlement requires that you understand what the outcomes of your case are, should your case go to trial. It is great if you can get a great settlement, but sometimes you are better off taking the case to trial. Sometimes being obstinate is the best strategy, and unless you can get exactly what you want at mediation, you are better off going to trial. Sometimes going to trial is the only way you can get what you need out of the case. On the other hand, sometimes you are desperate to get a good result at mediation because you know your prospects at trial are not good. Each case varies and is different. Most cases fall in-between this spectrum. It is a process that most cases go through because the court requires it to be done, and it can be a very effective process for settling cases in a favorable way.
The Cost of Mediation
As for protocol for mediation, you do not need to dress up, but do dress in a business-casual type fashion. Each party in mediation will pay the mediator 50% of the fees at the end of the mediation, so please bring your checkbook. Your share of the fees for a typical 4-hour mediation is likely to be around $300-$500, and mediators are paid the same day. Some counties offer free mediation services (Fulton County is one such county). Most counties however require the parties to pay for the mediation session. It is best to do a lot of listening, and less talking, when the other party and attorney are present. There are exceptions to this last rule however, and we can discuss this prior to mediation. The place of mediation is usually at the office of one of the attorneys, but it can also be at the courthouse, or even at the mediator's office. The location of mediation is not usually a critical element. I just prefer it to be a comfortable location that is easily accessible, so don't worry too much about the location. There is no home field advantage in mediation that I have discovered.
Contact an Experienced Atlanta Divorce Attorney
This is just a general outline of what mediations are and how they work. Each case will be handled differently, the strategies will vary, and the nuances, posturing, and preparation will be different for each case.
To schedule a time to discuss your case with Atlanta divorce lawyer Scott Shaw, please contact the office today by calling 678-292-5865 .
