Should I be considering mediation?
You should always be open to settlement as an alternative to trial. Trials are time-consuming and expensive. They are scheduled for a point in the distant future. And in proceeding to trial, you are putting the important decisions regarding your post-divorce life in the hands of a stranger in a black robe. You made the family and built the marital estate. Shouldn’t you and your spouse be the ones to determine how the marriage will be terminated? What custody will look like? How your estate will be divided?
Mediation gives you flexibility and control over a resolution to the important questions facing you in your divorce. Indeed, the power of mediation is that it is voluntary and it puts the power of settlement in the hands of the parties themselves. A judge in Anchorage used to remark to parties to divorce here in Anchorage: “I don’t love your children. I’ll do my best, but I only know what I hear in court. You should be the ones to decide how they will be raised.” The same holds true regarding a marital estate that it took years to build. Shouldn’t you be the ones to decide how to divide the remnants of your lives together?
In some cases, you may find it beneficial to retain a professional mediator to help you and your spouse come to an agreement. A mediator is a professional with specialized training in the art of dispute resolution. Your lawyer should be able to help you find a good, reputable mediator in your area and help you determine if mediation is the best option.
What is mediation?
Mediation is a process in which both parties come together for one or a series of meetings to discuss contested issues and hopefully resolve your disagreements on issues present in the divorce matter. It is the goal of the mediator to help you both find common ground and resolve your issues on terms that would be acceptable to a court but through a process that is much less expensive and less stressful than proceeding through the litigation process to trial.
At the outset, the mediator will give their introductory remarks and try to put everyone at ease. He or she will also provide you with the ground rules for mediating your dispute. In general, he or she will advise you that:
- the mediator is not there to serve in the capacity as an attorney, but will be acting as a neutral third-party to help the parties reach their own decisions;
- the settlement discussions that take place at the mediation cannot be used later in court if the case does not settle – your interaction in the mediation is confidential. The meeting is strictly for settlement discussion and settlement discussions are typically not admissible in court. Of course, if you disclose in mediation that you have a new bank account, opposing counsel can later subpoena that bank. Nevertheless, that information needs to be shared anyway;
- you and your spouse control the mediation inasmuch as nobody is pressuring you to settle or take a position. Nobody can force you to negotiate. And you are free at any time to notify the mediator that you do not wish to move forward. The mediator is there only as a facilitator, not as a judge.
Each mediator is different. Some may invite you or your attorney to make an opening statement or presentation of your case for the other side’s information. Most will already have asked for a mediation brief to inform them of the issues to be addressed. In most cases, after each party’s attorney has made their opening statements the parties will be moved into separate rooms, but in contentious cases, the separation of the parties can be done at the start of the process.
The mediator goes from room to room in a kind of shuttle diplomacy. That way, you can get things off your chest to a mediator that you did not feel comfortable discussing in front of your spouse. The mediator will go back and forth, learning more about each side’s positions and the basis for their desires on the matter to try and find a middle ground.
Before accepting any offer from the opposing party, you will have a chance to consider the offer, to discuss it with your attorney, and to decide how best to respond. In other words, at each step, you control process and outcome. You make the decision and then live by it. Compare that to the process whereby you present some evidence to a stranger in court, limited by the rules of evidence, with heightened emotions due to the circumstances, and then the judge, who does not know you, makes all the decisions.
Selecting a good mediator for your case.
A mediator is a neutral third-party who will listen to both parties’ grievances and post-divorce goals, weigh each party’s arguments, communicate each party’s proposed offers and settlements, and then help the two parties reach an agreement. Stated differently, a mediator is a “facilitator.” A mediator is someone who facilitates a resolution. The overriding purpose of mediation is to find a way to reach a binding and amicable settlement between you and your spouse.
In selecting a mediator, you want someone with experience with your type of dispute. Retired judges sometimes serve as mediators, as do attorneys. Find someone who has handled cases with issues similar to yours. You own a business – ask the mediator if he or she has handled disputes involving the division or dissolution of a business. Your issues include child custody, division of retirement accounts, distribution of real estate and shared financial obligations? Find someone to serve as your mediator that has experience in resolving these types of situations. Mediators may be asked to – and where knowledgeable in the area can – offer insight into anticipated outcomes in court where they’ve worked with similar issues in the legal system in the past.
At Hughes White, our family law practice has included every variety of family law issue and dispute, from multiple intertwined businesses to division of stock interests, to the protection and resolution of the ugliest of child custody fights. Both Jimmy White and Kimberlee Colbo have advanced mediation training and have helped countless parties through the divorce process in mediations and in court. We are here to help you with your questions, and if the situation fits, to serve as a mediator or to represent you at mediation.