Mediation Myths Dispelled
After many years of serving parties going through a family law matter, it is clear that many cases are best served with some form of alternative dispute resolution rather than litigation in a courtroom. There are several theories regarding when mediation is or is not appropriate. Listed below are explanations of the more common misconceptions surrounding mediation and the reality of how the mediation process can be useful in many case scenarios.
MEDIATION MYTH #1: Mediation is only for those people who get along or already have an agreement.
REALITY: Mediation is for those people who don’t want a Judge to decide their future such as where their children will live and go to school, whether the house will be sold, or how the retirement funds will be distributed. The fact that parties in a case may not be amicable is not a reason to avoid mediation entirely. With the right attorneys, mediator and physical space, mediation is still possible.
MEDIATION MYTH #2: A Judge’s decision is more effective and definitive and will bring the case to conclusion faster.
REALITY: Waiting for a Judge to make a decision in your case in a trial will take no less than one year – at a minimum. Certain counties are even more backlogged and the older cases always get priority when setting trial dates. That is at least 365 DAYS of waiting for forward movement in your life, and your children’s lives.
While you wait for that trial date and the Judge’s decision, your life cannot simply be put on hold. Interim decisions still need to be made regarding your children, regarding paying bills, paying for house repairs, and whether or not to pursue a new job opportunity. Meanwhile, throughout that interim period you are paying attorneys from your savings or on credit cards and waiting to make those important life decisions. If there are parenting issues, there will be additional costs for a Guardian ad Litem and/or a mental health expert.
It is correct that a Judge’s decision provides finality and decisiveness, whereas mediation does not include a Judge. However, the financial and emotional cost of a trial coupled with the substantial delay of time until that complete stranger makes a decision about the rest of your life, are what many responsible parties consider when they choose the mediation process.
MEDIATION MYTH #3: Mediation is only for those people who have the same understanding and information about the finances.
REALITY: A party cannot buy into a financial settlement if he/she is left in the dark on the financial circumstances of the marital estate. It is the mediator’s job to ensure that each party feels informed about the finances before settlement terms are reached. Mediation, when done correctly and with the right mediator, can be a cooperative space to gather and discover information so that everyone has the same level of understanding of the financial components that make up your case. If you feel that you are disadvantaged in understanding information then I recommend having an attorney provide you with guidance in the mediation sessions so that you can be an active participant in the process. It is also important that your mediator understand your concerns and misgivings about information that is shared and how it impacts your rights.
MEDIATION MYTH #4: If there is a discrepancy about child issues, then the children don’t have a voice in mediation.
REALITY: Although children are better off being isolated from the legal dispute, sometimes it is necessary that the children’s opinions (especially older children) are heard when it comes to certain parenting issues. If there is going to be a trial, the Court will appoint a Guardian ad Litem (GAL) or Child’s Representative to meet with your children and share a recommendation on parenting issues with the Court. However, if your goal is to avoid the courtroom, a similar option is still available in mediation. A mediator, with the same skills as an appointed GAL, can be the resource to gather the opinions and voices of the minor children caught between two parents. Although a mediator does not provide a recommendation like a GAL, the mediator can honestly report and share the children’s feelings with the parents that minimizes the children’s confrontation and involvement in their parent’s dispute.
