Mediation in Family Law Cases

Questions to ask yourself when considering mediation:

1. Is the divorce is an amicable one? (You are not likely visiting our website if it is.)
2. Do you feel you are a skilled negotiator?
3. Do you feel there is a balance of power between you and your ex?
4. Do you know the motivations of the mediator you have chosen to use?
5. Can you stand up to pressure from your ex, a mediator, and your ex's attorney?
6. Are you aware of your rights?
7. Was your relationship free of domestic violence?
8. Is your former mate a fit parent?
9. Do you have experience in the work and financial world which provides you a more level playing field in negotiations?

If you can not answer "yes" to all of these questions, mediation may not be for you.

If you feel you are a good candidate for mediation, here are some reasons why mediation can be a good route to consider:

The mediator is supposed to remain neutral between the husband and the wife. That means the mediator can't give advice to either party, and also doesn't act as a lawyer or therapist for either party.

The mediator may be able point out to both spouses things that each of them should be aware of about what they're trying to accomplish. Because both spouses are working with the same base of information, it usually takes far less time to negotiate a resolution that makes sense to both spouses.

You may have your attorney present at mediation if you choose to, or you can use your lawyer as an advisor between sessions. This is a decision that is strictly up to you.

Mediation should be voluntary. It continues only for so long as all three of you - you, your spouse, and the mediator -- want it to. You or your spouse can withdraw from mediation at any time, for a good reason, a bad reason, or no reason at all.

Mediating couples may be more likely to be satisfied with the process and the results, take less time and spend less money, and be less likely to go back to court later.

The main advantage of mediation is that it keeps you and your spouse in control of your own divorce. That can make all the difference in your recovering from your divorce, moving on with your life and maintaining your financial assets. Mediation allows the two of you to get through your divorce with less conflict than you would experience in an adversarial divorce.

If you are not a good candidate for mediation, be aware of the following:

Mediation should be voluntary, so feel free to opt out unless you find the court has stepped in and made it involuntary. Should you still choose to attempt mediation even though you do not meet the criteria of a "good candidate" or are forced to mediate against your will; here are some things you should be aware of:

Remember, the goal of a mediator is to come to a conclusion as quickly as possible…to make a deal. There is a lot of pressure on the parties to settle. If the parents can't agree, the mediator may make the decisions. We are aware of mediators that use coercion, bullying tactics, fear and other damaging methods in order to force an agreement. The mediator is not there to come up with a "fair" agreement, or to come up with one that considers your children's or your best interests. They are there to simply obtain an agreement.

It is far too easy to "negotiate" away your legal rights in mediation because a mediator isn't there to tell you what your legal rights are.  Some attorneys have been able to successfully raise consitutional issues on the grounds that mandatory mediation violates the 6th amendment--the right to counsel.  Even if attorneys are allowed to participate, by definition, mediation seeks to limit the attorney's influence.

Be aware of your state statutes in regards to mediation and domestic violence. Many states have laws on the books that prohibit domestic violence victims from having to participate in mediation. You would be amazed at how many victims' own attorneys do not know or do not disclose these statutes to their clients.

Be aware of your state statutes in regards to mediation and confidentiality. In most instances, what happens during mediation is confidential, unless you sign an agreement. A signed agreement can then be produced in court by your opposition. We are aware, however, of states that do not provide such confidentiality, and of mediators that take sides, label one party uncooperative/unreasonable/unstable/uncommunicative and actually write reports to the court.

If you are forced to attend involuntary mediation, keep your emotions in check. Know your bottom line and do not cave in to the pressure. Prepare for your own use a starting point and a bottom line to guide you. Judges often look at who is being "cooperative" and who is not. At least be able to show that you attended the session and participated in some meaningful way.

Be aware of the mediator's motivations and background. Mediators can be anyone-- accountants, therapists, psychologists, attorneys, even Christian fundamentalists with a goal of saving marriages. Know who you are dealing with. Ask about any potential conflicts of interest-do they know your ex, have business relationships with your ex's attorney, etc. Mediators do not have to be lawyers; they may or may not be covered by licensing laws. Generally, anyone could put up a shingle and be in business.

If you have been a domestic violence victim and have been forced into or have agreed willingly to mediation, consider asking the mediator to use the "caucus" style of mediation. This entails having the parties in separate rooms and the mediator moving from room to room to facilitate agreement. Be aware, that this type of mediation is generally doomed to fail.

Parents rarely enter divorce in a situation of balanced power. Women, particularly those that have not been in the work-world, do not come into mediation with the same sets of skills and experiences as their former mate, which puts them at a distinct disadvantage. Mothers typically see custody and visitation as their most important issues, and have a tendency to "give away the farm" when it comes to the finances in order to retain primary parenting of their children.

Finally, we do not advise mediation unless you can answer "yes" to ALL of the questions at the top of this article, and even then, proceed with caution and awareness.  If you have been forced into mandatory mediation against your wishes, we recommend you consult with an attorney prior to entering into mediation. Particularly, review state statutes that may be contrary to mandatory mediation for domestic violence victims.