Mediation

MEDIATION & ALTERNATIVES TO COURT LITIGATION

There are several options available to people facing a family law problem. Litigation is when the matter and decisions are submitted to a judge for decisions. Litigation is an adversarial process and hearings are required. However, when immediate court orders are not a necessity, alternate dispute resolution proceedings can provide the parties with a viable means of resolving their issues through an agreement (rather than litigation). Voluntary mediation is the traditional alternative dispute resolution method. It provides parties with a chance to make their own agreements and solve their own problems. The process is confidential in nature, and that confidentiality is protected by law.

What Does a Mediator Do?

The mediator’s primary role is to create a setting in which the parties can find common ground and reach an agreement. The mediator acts simply as a neutral overseer attempting to bring about and seal a meeting of the parties’ minds, he or she does not act as a decision maker.

Notwithstanding the autonomy from litigation with mediation, it is encouraged that parties be represented by separate counsel to protect the finality of any agreement they ultimately reach. This is to avoid later claims that a party did not fully understand the process or the agreement. Mediation agreements entered as judgments can be challenged and possibly set aside within six (6) months of being entered upon a showing of mistake, inadvertence or neglect. However, if each party is represented by an independent attorney when the underlying agreement is made, it can protect against such claims.

Mediation Alternatives

Another method for alternative dispute resolution in family law cases is collaborative law. The collaborative law process approaches the case as a non-adversarial united effort to reach an agreed resolution of the issues without court involvement.

Collaborative Law

Lawyers, accountants, therapists, forensic experts and other professionals involved in the collaborative process agree in writing to use their best efforts and make a good faith attempt to resolve the issues without court hearings. If an impasse blocks settlement or either party desires to withdraw from the collaborative process and return to litigation, the collaborative attorneys usually will not be permitted to continue representing the parties. Instead, the parties may need to hire new attorneys for litigation.

The collaborative law process is confidential with the exception of expert reports. In most cases, the reports prepared by experts during the collaborative process may be used in court if necessary. This exception is meant to decrease the potential costs and emotional turmoil of having to endure a second expert evaluation.

Financial Considerations

The costs associated with a family law case are primarily driven by the parties and their behavior. These alternative dispute proceedings have potential advantages over traditional litigation; but the ultimate cost will depend on the conflicts and the parties’ circumstances. Each dispute resolution option, including traditional litigation, offers potential benefits and burdens. Many times people approach their family law matters with a mixture of several of the options. For example, many times cases begin in litigation, but still resolve some (if not all of the issues) through mediation.