John Preston Smith Divorce Law Blog on Lawyers.com

Benefits of Mediation in Family Law Litigation

Wednesday, February 1, 2012 by John Preston Smith

Within most domestic relation disputes that are filed and litigated there exists an excellent opportunity to reduce both the financial and emotional cost to the parties: mediation. The definition of the word holds hope: "to settle, to remove misunderstanding, and to bring peace." The process is intuitive and simple and used in the context of a proceeding for divorce or custody can place the power to determine a just outcome squarely in the hands of the parties intimately involved.

As children (and most likely as adults as well), we all have memories not wanting to be told "how, what and when to do things." We wanted to make our own decisions. However, when a family law court case comes before the Judge the ability of the parties to make decisions is at an end. The Judge, based on the evidence presented, now will decide what is fair, who shall receive what assets and who will have primary custody of their own children. The nature and circumstances of some cases may require the Court to act as the final arbiter. However, in many instances, the act of the parties and their counsel sitting down across a table in a controlled environment with an experienced mediator can resolve many things. At mediation one’s entire case can be settled down to the last pot and pan. Mediation is confidential; all notes are destroyed at the end of the mediation session; and the mediator cannot be called as a witness in the event the matter proceeds to trial. These safeguards are in place to ensure that everyone involved comes to the table in good faith and on equal footing.

Many mediators have said to me over the years that "no one comes out of a successful mediation happy." What I take that to mean is that neither party feels like they "won." However, what they have accomplished is settlement of very personal disputes that were both kept from having to be displayed in the "openness" of a courtroom and that the parties through understanding and meaningful negotiation were able to resolve on their own. Although, not appropriate in all instances, mediation can be a practical and useful tool in bringing peace to the chaos of family law litigation.

Posted at 17:13 PM

Topic: Divorce