by: Nicole Taylor
What Is Mediation?
In a divorce-related mediation, a neutral third party, most often an experienced family lawyer, helps the parties resolve their claims through negotiation, rather than by having issues decided by a judge in a trial setting. The mediator does not have the same role as a judge; he or she cannot make rulings in the case and cannot order either party to take any particular action. Instead, the mediator acts as a facilitator, managing the settlement offers and communications exchanged between the parties, and helping them identify common goals and bridge gaps to reach an out-of- court settlement.
Does Litigation Have to Be Filed In Order To Mediate?
Almost all divorce-related claims, including child custody, child support, alimony and equitable distribution, may be mediated. Parties may decide to voluntarily mediate these issues before any litigation is filed, and if they reach a settlement at mediation, the terms can be memorialized in a private agreement. In fact, it is not uncommon for separating spouses to take that route, and it can be a cost effective way to resolve divorce-related claims.
While resolving claims through pre-litigation mediation has its benefits, it is not always advisable in every case. For example, if the opposing party is not making full and fair disclosures about financial matters, then litigation may be necessary. In that situation, once a complaint has been filed, parties are able to serve formal discovery under the applicable court rules. Formal discovery is a tool available to litigants that allows them to obtain information and documents relevant to the pending claims. Discovery tools include requests for production of documents and written questions called “interrogatories” that are answered by the opposing party. As part of the formal discovery process, the judge may compel a party to respond to discovery requests, and the judge has the authority to impose sanctions on a party who refuses to comply. When litigation is pending, parties also have the ability to obtain information and documents through subpoenas and depositions. At Gailor, Hunt, Davis & Taylor, PLLC, we assess whether a divorce- related matter is one in which a pre-litigation mediation is appropriate on a case by case basis after a thorough discussion of the facts and circumstances with our client.
What Should I Expect During Mediation and How Should I Prepare?
Both sides should expect mediation to take a long time, usually all day, and in more complex financial cases up to several days. Often clients are concerned that they will have to sit in a room all day with their ex-spouse, but that is not the case. Typically in a family law matter, where emotions can be highly charged, the mediator keeps the parties in separate conference rooms and communicates the offers back and forth between the two rooms. In our practice, rarely do the clients meet jointly with the mediator during the process, other than an occasional but very brief informational meeting at the start of the day in which the mediator gives the participants an overview of the process.
Come to mediation as prepared as possible. Cooperate with your attorney to provide the information and documents that the attorney needs to prepare in advance. For example, if your case involves division of property and spousal support issues, give your attorney documents that support your property values, your income and your budget and go over these with him or her. The mediator and/or the other side will ask for this information in order to assess the offers. Being able to back up your position with documentation usually helps persuade the other side to compromise. Also mediation is usually more productive when supporting documents are exchanged with the other side in advance, so work with your attorney to determine what should be exchanged beforehand. In addition, before mediation, make sure you have a candid discussion with your attorney about what is important to you and what you would like from the process, while at the same time taking into account your attorney’s assessment of the settlement value of your case. Going into mediation, you should have a realistic understanding of your likely “best case” and “worst case” scenario in court, including an estimate of how much in attorney’s fees and costs you will likely incur to litigate the issues if the case goes to trial. The financial expense and emotional toll of litigation should not be ignored when analyzing the settlement value of your case.
There is typically a lot of down time while the mediator talks with the other side. As a result, sometimes participants understandably get frustrated and fed up with the mediation process. Prepare yourself going in that this may happen in your case — keep an open mind and let the process play out before you call it a day. Often times the other party simply needs to feel they were allowed to tell the mediator their side of the story before true progress can be made toward settlement. An experienced mediator understands this, and is able to gauge when progress likely can still be made as opposed to when settlement negotiations are truly at an impasse. If you give the mediator time to do his or her job, you will have a much better chance of settling your case in mediation.
Nicole Taylor is a Certified Mediator for Family Financial Cases and a partner at the law firm of Gailor, Hunt, Davis & Taylor, PLLC in Raleigh, N.C. She can be reached at 919-670-2925 or via email at firstname.lastname@example.org.
In our Podcast, Jaime Davis discusses the topic of mediation with fellow family law attorney and mediator Lynn McNally. The podcast addresses questions such as: How does mediation work? How much does it cost? Why is mediation beneficial? Are there any downsides to mediation? Listen below!