Earlier in my career, I was often reluctant to encourage potential clients or clients into Mediation. The reason was not because I would rather have their business as a lawyer, but it was mainly because of the sheer number of clients I had received from failed divorce mediation attempts. However, the more I learned about it, and after continuing education on it and listening to clients’ complaints about their mediation attempts, I realized I was wrong. Mediation is a fantastic means of working out a divorce settlement and is a less expensive, less dramatic, and less intrusive scenario. So why all the complaints from those people over the years? Contact Biedak & Finlay Law
Put, Mediation has pitfalls, and if you do not go into knowing what you are trying to achieve, what to expect, and what will be needed before going into Divorce Mediation. Some of this can be the ‘fault’ of the mediator for not giving a proper orientation and setting up the groundwork. However, many people approach Mediation from a win-lose perspective and think negotiations must be crude with stone-faced grimaces. This is not the case. Modern Mediation and negotiation should be collaborative, especially when kids are involved.
Additionally, if you are walking into Mediation, you should have more than one proposed solution in mind for any given issue. A person will also need their financial statements to help the mediator and other supporting documents to identify exact problems or amounts.
Not only that, but it never works out when people go into Mediation close-mindedly. Mediators will often be able to hear two different perspectives and two different solutions and then start proposing things that might work for both parties as a compromise or tell them something they have never considered before. If a person has a closed mind, they will not entertain suggestions. There is no sense in entering Mediation if there is no room for compromise or alternatives in your mind.
Another problem with Mediation is that a mediator might only serve a specific function for you. Many mediations are lawyers who will speak with both parties occasionally and write up the Agreement for the parties. After that, they send them without further guidance or legal advice. This is a professional decision for some mediations. The problem is that the parties get an entire agreement and sign it, and then they must bring it to court and submit their financials. Often, if a person enters court unprepared and represents themselves, they do not know what to say in front of the Judge. If there is a term the Judge does not like, thinks is fair, reasonable, or without any support, then a judge does not have to enter the Agreement as a judgment. I have seen this happen often when a judge asks about the Agreement, and both of the parties shrug their shoulders and do not know how to respond or do not know the specifics.
A mediator must advise you on how to proceed and where a judge might scrutinize an agreement. The more experienced the mediating attorney, the more likely the mediator will know how to coach people on what they must answer for and how to be prepared for a smooth divorce hearing. But it is important to note that the mediator does not go with you to court, so you need to know your Agreement inside and out before your divorce hearing. So, when shopping for a Mediator, please consider one with a good deal of courtroom experience to avoid being knocked back by the court. I have picked up cases where the Judge tells the parties she does not accept the Agreement and returns to the mediator or gets a lawyer. Then, the parties hire lawyers and start the litigation process rather than re-subscribe to what was signed at the Mediation.
Also, few people realize they can and should consult with a lawyer before and during mediation to be aware of their rights.
Now, I have mentioned what can go wrong in mediation, but a lot can go wrong if you select the right mediator.
If it works, then it is going to be cheaper. Suppose someone prepares their finances, brings supporting financials as their mediation ‘homework,’ and puts a few sessions on the calendar. In that case, the mediator knows how long they have to resolve the issue. However, when parties use lawyers alone, reaching the same destination sometimes takes double or triple the time. This is for a lot of reasons. Lawyers representing their clients are just humans with busy schedules and families. So, first, a lawyer needs to formulate an offer. Then they send the offer, and the other lawyer has to read it, create their notes, talk to the client about it, and answer all the questions. Then, a counteroffer is forged. During this process, the lawyers will have questions and need to verify information. This is litigation. Suddenly, years of documents are being produced and scrutinized, and the clients are paying for that verification, and you have to wait for that verification before you can sign the deal. Sometimes, this is necessary for people; however, in Mediation, people might forgo that level of depth because they already know the answers and are comfortable cutting certain corners.
Additionally, lawyers, and I am one, have a way of informing clients about their rights and taking clients through a labyrinth of long-term decision-making but from an adversarial perspective, a perspective based on winning. When something is about children, winning takes on a lot of forms. Still, the best form is usually thinking about their best long-term interests and ensuring both parents have access and are on a schedule that works for everyone, especially the kids. This is a collaborative need and is better done at the round table.
Finally, the most significant benefit besides money and time is that you and your soon-to-be ex-spouse can talk about scheduling needs face-to-face and are more likely to compromise when they are in front of each other and on equal footing in a collaborative process. The alternative to this is a one-off settlement offer between lawyers and a trial if that does not work. A trial is when a total stranger who has been made Judge reviews the evidence and makes all these decisions for the parties and the children. While many judges get it right most of the time, that is seldom the impression, and that is because judges weigh various kinds of evidence differently. Sometimes, people think the most important thing is a detail that their husband or wife did three years ago or maybe someone’s non-productive behavior. This list could be ten miles long. Often, the Judge does not concern themselves with specific grievances like an ex-spouse would. Then, the Judge hinges everything on a detail neither spouse considered especially important. The bottom line is that it is distinctly unpredictable.
Mediation is by far a better forum for having your voice heard and deciding your own fate than leaving the decisions up to the Judge, who might like what one lawyer says better than another.
I am pleased to do divorce mediations near me and take the clients through the complete process from beginning to end, so there are no surprises. Please consider Biedak & Finlay Law, Robert Finlay, with offices in Plymouth and Taunton—an experienced attorney and mediator.