To Mediate Or Not

Mediation can be a very useful tool but like most projects in life, not every tool is right for every job. For some jobs the right tool may not matter if the skill to use the tool is not present.

Mediation can be done privately with both sides of a divorce or a custody dispute jointly hiring a mediator to help them resolve their dispute. Cases in court can also be assigned to a mediator who is provided free of charge to encourage resolution at lower cost than a trial and with or without the attorneys being present. Mediation agreements should cover all the major issues including custody, parenting schedules, child support, spousal support, equitable distribution, separate property credits and any other important issues arising from a divorce.

Private mediators do not have to be attorneys, they can be a social worker, a psychologist, a CPA, a financial planner or your neighbor next door who has taken classes in mediation and divorce law. Mediation when done privately is a tricky area to navigate. Remember that the mediator is not your attorney or your advocate. The mediator's role is to facilitate conversation and to raise the important issues and to make sure that both sides participate. What the mediator should not be doing is giving either side advice or choosing sides. The ideal private mediator, in my opinion, is a divorce attorney because they bring with them a wealth of knowledge of how cases are typically handled in court. If the mediator has never practiced law their knowledge is only based on what someone has told them or their reading and training. In my opinion there is huge value to having a mediator that has tried cases and has walked the walk with clients. Mediators that are not attorneys cannot draft the final agreement as that would be the unauthorized practice of law, so therefore a drafting attorney will be necessary. Private mediation is of limited value where the assets are not disclosed or the values are unknown. For example, the value of a business may be a difficult topic for mediation or if one person has unreported cash income or assets were obtained before the marriage and separate property credits are requested.  Mediation without financial discovery may lead to less than fair result. On the other hand, where both parties are articulate, knowledgeable regarding the assets and income and have a genuine desire to resolve their case without going to court mediation can be very helpful, cost saving and expedient.

In court when a case is sent to a mediator, the mediator is an attorney that has actively worked in the matrimonial department of the court usually as a law secretary to a judge, as a magistrate or court referee or in some cases  a retired judge.  The assigned judge refers the case to the mediation part and the parties and their attorneys pick a date for the first session.  After the first session the parties have the option of returning for additional mediation or to opt out and proceed only with the judge.  I have had cases with multiple mediation sessions that have successfully been resolved.  The mediators are known by the attorneys to be knowledgeable and experienced and will often provide alternative solutions or ways of looking at an issue.  In most of  the cases that I have had referred to courthouse mediation, the cases have been resolved at far less expense to the clients.  While the clients have the option of not having their attorneys present, I have always participated as I think there is a great deal of value in making sure their position is properly explained.

Therefore, whether to mediate privately should be a carefully considered decision.  Whether to participate in courthouse mediation I think is an easy decision.