In short, family mediation is a type of alternative dispute resolution method. In mediation, a neutral third party, known as a “family mediator,” is appointed to resolve various issues and conflicts between two disputing parties. Family mediation allows for both parties in a family law matter to work through their issues by facilitating communication between the two parties in a non-confrontational atmosphere. The overall goal of the family mediator is to resolve all issues and conflicts between the disputing parties through fair and reasonable compromises by both parties. Similarly, the overall goal of the mediation process itself is the settlement of all issues.
The mediation process is different from the arbitration process, which is another more formal alternative dispute resolution method. During arbitration, a neutral third party “arbitrator” is assigned to the case to listen to both parties claims, then the arbitrator makes a binding decision as to those claims.
Often this means that one party prevails over the other party and is awarded relief. In contrast, the mediation process is more informal, and any and all settlements or settlement offers made during the mediation process are rarely legally binding. Additionally, the parties often get to agree on a mediator beforehand. Lastly, the mediator will not decide on the issues presented to them, rather they will facilitate cooperation and compromise between the two parties.
Importantly, as an alternative dispute resolution method, family mediation is often favored by both courts and parties who seek a less costly and timely means of resolving a family dispute. Family mediation is almost always less expensive than trial, as trial often requires higher attorney fees, the presentation of evidence, witnesses, and other court costs.
As mentioned above, the family mediation process generally first begins when two disputing parties agree to submit to mediation process. However, the mediation process can also began due to a court order requiring mediation. Once again, even though mediation may be court ordered, the parties are free to walk away from settling in mediation and proceed to trial. It is important to note that all settlement offers and communications made during mediation are confidential and may not be used in trial.
After submitting to the mediation process, both parties will then select a mediator. If the parties cannot agree on an acceptable mediator, then the court which is hearing the case may then appoint a mediator. Preferably, both parties should look for a family lawyer or professional mediator who is knowledgeable of their particular family law dispute and within their price range. Once again, the mediator should never be interested in the outcome of the mediation, and should always remain neutral. If either party during the mediation should feel that the mediator is interested or not neutral, that party should immediately end the mediation process.
Typically, the mediation process can last anywhere from a half day to multiple weeks, depending on the nature and complexity of the family law issues presented. After settling on a mediator, both parties, with or without representation, will voice their issues and attempt to reach an amicable settlement. If the parties are able to reach a settlement, the parties can then formalize their agreement in a contract or in a settlement agreement that is then submitted to a judge.
Some issues that are generally resolved in family mediation include, but are not limited to:
- Divorce issues, such as issues regarding property division, child custody, visitation rights, alimony, or child support;
- Elder care issues, such as family business succession, the management of the family estate, or inheritance; or
- Other family law issues, such as issues between children and parents or issues between parents and grandparents regarding child visitation or other communication issues.
As can be seen, the most important part of the mediation process is the participation and involvement of the disputing parties. This means that the mediation process is typically only recommended for parties which are willing to openly participate in the alternative dispute resolution process.
Mediation is also not recommended for persons who are still recovering from emotional damage or trauma from the family dispute in question, as they would likely not be able to properly participate in the process. Further, mediation is also not advised for persons who do not possess the legal capacity to make decisions regarding the dispute.
Generally, this includes minors, persons with certain psychiatric disorders, or persons that lack the mental capacity to make legal decisions. Importantly, this does not include attorneys, as during the mediation process they act as representatives to the party that has the legal capacity to make decisions.
Although not a requirement to participate in the family mediation process, having a well qualified and knowledgeable family attorney during mediation sessions may be in your best interests. It is highly recommended for both parties to hire an experienced family attorney before participating in the mediation process, in order to ensure that both parties are equally prepared and on an even playing field for the mediation process.
An experienced family attorney will be able to properly prepare you for mediation through the preparation of conflict summaries and desired outcomes. Additionally, they will be able to use their legal knowledge and experience to recommend fair compromises given your particular legal disputes. Finally, they will be able to review any contracts or proposed settlement agreements, as well as represent you in court if the mediation process fails.