In recent years most courts have encouraged litigants to attempt to resolve their cases through mediation. Mediation is a process in which the parties meet with a neutral person who assists them in negotiating their differences. The mediator helps the parties determine whether they can reach common ground on some or all of the issues in their litigation. If the parties are able to reach an agreement they avoid the cost and inconvenience of further litigation and the court is able to close out their case without conducting a trial.
Courts are particularly eager for the parties in family law cases to attempt mediation and will often require at least one attempt at mediation, particularly where there is a custody dispute. One reason for this is a recognition that when two people have had a child together they are in some important ways linked to each other for the long term. Even though their relationship with each other may have dissolved they must often share parenting at least until their child is an adult – and even after that they will need to find ways to coexist during important events in their child’s life. Even in cases in which the parties do not have children, judges find that the litigants themselves can play an important role in finding solutions to their case. The judges have training and experience in the relevant law and are prepared to hear and weigh the evidence and argument each side presents, but the judge is a stranger: the only knowledge the judge will have about the particulars of a family’s situation is the limited amount of information that can be presented during trial. This means that the parties are often in the best position to figure out solutions that will work for them and their extended family, simply because of the wealth of information they have about each other. One frequent barrier to reaching such agreements is the emotional upheaval that often accompanies family litigation. Skilled mediators are often able to help litigants see beyond the hurt, anger, or frustration that they may be feeling toward each other and focus instead on a plan for the future.
In most family law cases the judge or jury hearing the claims has very broad discretion. Counsel can provide some valuable information regarding what the judge or jury is likely to do but ultimately the outcome is up in the air until a decision is actually issued. When parties reach a settlement each is giving up the possibility of getting more of what he or she wanted if the case went to trial. On the other hand, each is also gaining relief from the risk of getting less at trial. Reaching a settlement is a way to turn the unknown into the known, avoid the risk of a poorer outcome, obtain a degree of closure, and move on with life.
Traditionally, many lawyers avoided suggesting mediation because they were concerned that any mention of a willingness to settle the case would be taken by the other side as a sign of weakness. This often meant that settlement negotiations were delayed until trial was imminent. There would typically be a last minute scramble to reach agreement – which meant that the parties had to wait longer to resolve their cases and had to make decisions about a proposed agreement while experiencing the pressures of a looming trial. Most lawyers have come to understand that suggesting mediation or indicating a willingness to reach a settlement is not a sign of weakness but simply a means to move the process forward.
Do I need a lawyer during mediation?
An attorney who is experienced and knowledgeable about family law can provide very valuable assistance to parties during mediation. Your counsel can work with you to gather the facts and legal arguments that most strongly support the outcome you are seeking. These are often used to press for terms favorable to you during the mediation process. Counsel can also provide information regarding what the court’s decision in your case is most likely to be if it were to go to trial. Such information helps you make well-informed decisions about any offers made by the other party. Your attorney can also help to evaluate the potential consequences of any proposed agreement, both in the immediate future and in the years down the road when your family’s circumstances may be very different.
Georgia Lord’s extensive experience working for a busy family court makes her well-suited to assist family law litigants during mediation. Her observation of the outcomes in a large number of cases assist her in assessing the likelihood of a desired outcome in a particular case. She is also able to suggest ways to solve particular problems by drawing on ideas used in other cases. She has completed mediation training herself and welcomes the opportunity to use mediation to see whether the parties can reach agreement upon terms that are reasonable for her client. She also has a lengthy history of conducting spirited litigation, however. If the other side is only willing to offer terms that are unreasonable or unacceptable she is content to return to the litigation process.