Mediation In Family Law Cases: Tips To Get The Best Outcome
It is not uncommon for a party trying to resolve a dispute regarding a family law matter to come to mediation unprepared, unfortunately even when represented by counsel. This jeopardizes the likelihood that mediation will be successful. [Mediation, also known as a settlement conference or alternative dispute resolution, is the process where parties attempt to negotiate a mutually agreeable settlement with the help of a neutral mediator to avoid court litigation. The mediator cannot make decisions like the court can, and the parties have a say in the final outcome.] At our firm, we take particular care to ensure our clients are adequately prepared for mediation, and these are our tips to make mediation successful.
- Determine if mediation is mandatory and/or desired. Most family law cases require the parties mediate, with some exceptions; one being if there is domestic violence. Many parenting plans also require parents to engage in mediation or alternative dispute resolution prior to going to court. There also may be situations where the parties desire to mediate even if not required, one example being to avoid extensive litigation that would make information public record.
- Determine if you are ready to engage in mediation. Consider whether you have sufficient information to be able to resolve the matter, including incomes of both parties, values for property and debts, financial statements for incomes and accounts, and any needed analysis/opinions from “experts” such as an accountant, financial planner, or parenting plan evaluator. Consider whether the other party is willing to engage in mediation at this time.
- Research options for mediators and/or obtain the advice of counsel to choose a mediator. Generally, the parties must agree on which mediator they use. Choice of mediator is often overlooked and is a critical factor in a successful mediation. It is important to choose the right mediator for your situation. This is where having an attorney assist in choosing a mediator is beneficial as they generally have worked with many mediators and are familiar with their backgrounds, experience, and mediation styles. How much a mediator charges may also be a factor in your decision.
- Prepare for mediation:
- Be educated on basic family law that is applicable to your case (property division, spousal support, parenting plan, child support, etc.), whether that be through your own research or education from your attorney. This will allow you to have reasonable expectations at mediation. The mediator cannot give you legal advice, and it is not their job to advise you, tell either party who is “right”, make decisions, or force a party to agree.
- Think through options, ranges, and a bottom line for resolution that are acceptable to you.
- If a residential schedule for children is an issue, think through what are acceptable options for a school schedule, summer schedule, holidays, transportation, etc.
- If a party needs to be removed from a mortgage or car loan, find out whether they qualify to refinance.
- If a cash payment is involved, determine whether payment is needed right away or can be made over time and ability to secure funds for the payment.
- Prepare a mediation letter with a summary of the relevant facts, legal support, and your proposal for resolution and attach relevant financial or other documents, if any.
- Do not make unreasonable proposals, which could interfere with good faith negotiations.
- Find out ahead of time what the process will be like the day of mediation. Will the parties be in the same or separate rooms?
- Have the right mindset for resolution going into mediation:
- Keep in mind that mediation is about negotiation and compromise. Be prepared to give something to avoid the costs of litigation and court action.
- Have realistic expectations. Most agreements, neither party will walk away with everything they want. The critical question is whether the resolution is satisfactory and something you can live with.
- Be prepared to make hard and final decisions that day.
- Listen and consider what the mediator is telling you, but also be prepared to articulate your reasoning if you disagree.
- Creative solutions can be considered, even if it may not be something the court would order.
- Know what you are willing to compromise on to avoid the cost of going to court, while considering any alternative options you may have if no agreement is reached.
- Be prepared for what could be a long day, and try to make arrangements to ensure you are available at least for the scheduled mediation time, if not longer. Negotiations and the mediation process can take time and rushing mediation can result in no agreement being reached.
Our Family Law Group is available to assist you in determining whether mediation is appropriate for your situation and to represent you through the process, or on a consultation basis if you have questions. Please contact us to schedule a telephone or video conference, via email to JasmineB@beresfordlaw.com or call our office at (425) 776-4100.
