I’ve recently been working on a number of mediation cases. I’m glad that we offer it as a service at the Law Office of Lisa A. Vance, as it’s the perfect solution for some couples who are seeking divorces. They may not have the number of issues or intensity of issues needing litigation to sort it out, but they also might not be able to sort out their divorce decree on their own.
What’s struck me in these recent mediation cases I’ve worked on is how my experience along a full spectrum of divorce cases has helped me. I have a sense of how issues we’re trying to manage through mediation might play out in a court or through other alternative dispute resolutions.
One of the risks that comes with trying to settle a case through mediation is that you’re asking a couple, over a half-day or a full-day session, to come to a decision on issues they’ve fought over. Mediation often asks both sides to move toward a compromise, and asks them to do so fairly quickly. The temptation can be, if one party feels that the compromise isn’t acceptable, to walk away from mediation and hope that court provides a more victorious outcome.
A mediator who doesn’t have significant court experience might not be able to adequately convey what might happen in court. Conversely, a mediator who does have significant court experience can talk about outcomes more knowledgeably, and can give the parties a better sense of how a proposed decree might compare to how a judge would rule if it were left up to a judge, through litigation, to determine the decree for the parties.
While collaborative law experience isn’t essential to the mediation process, it’s helpful to mediators to have seen firsthand the solutions come up with in the collaborative law process.
Both mediation and collaborative law allow couples to be creative and flexible in how they settle their divorces. In litigation, judges will typically choose from a narrow range of options in settling a dispute.
For example, if there’s a house being disputed in a divorce case, the judge might decide to have the house put up for sale and to have the couple split the profits from the sale.
The couple might, however, prefer for the house to stay intact, and compensate the person who gives up the rights to the house with other assets. Mediation allows for that to happen – in the end, if the solutions are agreeable to both parties, the mediator can make sure those are in the final decree.
If mediation is an option you’re exploring, it helps to ask your potential mediator questions about his or her experience in family law – not just mediation – as well as how he or she does mediations. Also remember that a mediator is there to help you settle a dispute in the way that a judge would, in that you can’t have the mediator provide you legal counsel. The mediator, however, will be invested in helping you get to a resolution within a defined time frame – and with a structure that can produce a settlement in ways that more open-ended litigation or collaborative law processes can’t.