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MEDIATING YOUR FAMILY LAW DISPUTE: MAINTAINING CONTROL, BEING CREATIVE AND PRESERVING RELATIONSHIPS

I used to represent people in family law disputes – divorces, legal separations, custody and parenting time disagreements, dissolutions of domestic partnerships, and the like. The last case I took to trial took two days, spread out over a five-week period. The parties had virtually nothing except a lot of debt and a house that was on the brink of foreclosure. Try as I might, I could not get the case settled. The lawyer on the other side wouldn’t even respond to the letters setting forth the terms of an offer, so my client and I had no choice but to go to trial. At the conclusion, when the judge told the parties what he had decided, my client leaned over to me and whispered, “What the #@!% just happened?” Although taken aback, I realized the question was a good one since the judge had come up with a result that was far different from anything that had been anticipated.

The purpose of this story is to point out what I see as being one of the most significant benefits of mediating your family law dispute, and that is control. While one might think that a courtroom is a very controlled environment, the opposite is true. Every judge brings his or her own history, belief system, life experiences, and, yes, biases, to the bench that impact their assessment of your case. Your judge in your divorce case, for example, may have gone through a divorce of their own and have strong feelings about one or more of the issues in your case; in years past your judge may have represented someone in trial or before the Court of Appeals and strongly argued a position that happens to be identical to the argument being raised by your spouse; perhaps your judge woke up on the wrong side of the bed that morning and is in no mood to preside over your case – or any case – that day. The point is that you have no control over the beliefs, emotions or moods that your judge may bring to the courtroom. In mediation, however, you control what issues are discussed in mediation, what issues are resolved, and the manner in which those issues are resolved. Unlike a judge, a mediator has no authority to order you to do anything.

Another downside to going to Court is that a judge is required to follow the law. Statutes, administrative rules, and precedents established by higher courts limit trial judges in what they can order. They also have very congested dockets and are limited in how much time they can give any particular case. The beauty of mediation is that you can be creative and take as much time as you need to reach a satisfactory agreement. With the assistance of a skilled mediator, you can devise custody arrangements, parenting plans and financial provisions that are created “outside the box” and are tailor-made to fit your family, but still comply with the law.

Lastly, people who go to trial tend to view the courtroom as an arena where they need to pull on the boxing gloves. Often, it is not their intent to escalate the conflict or create animosity, but that is often the by-product of the trial. Lawyers are trained to zealously advocate for their clients, which often is perceived as “hitting below the belt” by the other party. This kind of acrimony can be avoided in mediation. Dialogue and communication can actually be enhanced between parties during mediation. Consequently, relationships are preserved, and not destroyed, during the conflict-resolution process. This is particularly important when children are involved, even if the children are grown and on their own.

There are other benefits to mediating your family law dispute, including a significant cost savings, compared to the traditional litigation approach. Maintaining control of the process, creatively devising your agreement, and preserving a cordial relationship post-conflict are at the top of the list.

 
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