Family Law Mediation differs from other areas of dispute resolution in many respects. In Family Law Mediation, the mediator, deals with complex emotions of the family system; the stress of an anticipated divorce; the division of the family as a whole and helping the parties see and understand new roles for the family members; the best interest of the children; and property and debt issues as well. Further, Family Law mediators also deal with modifications of prior orders, termination and adoption issues, establishment of paternity issues, possession and access of the children involved, child support, health insurance for the children, and other issues in other suits that may affect the parent-child relationship. In addition, the Family Law Mediator must be an expert time manager while dealing with these emotional issues. So what does the Family Law mediator like to see from the clients prior to the mediation?
I typically tell clients in prepararion for the mediation to have the following items ready and remitted to me five days prior to a mediation:
- a disputed issues checklist outlining the issues in dispute;
- copies of the live pleadings filed in court;
- a brief summary stating the client's goals in relation to the issues in dispute;
- if property and debt are involved, an inventory and appraisement of the parties' assets, or at the least, a suggested division of the community estate; and
- if children are involved, a summary of the client's desires for a parenting plan including suugestions for conservatorship, possession and access, child support, and health insurance.
If at all possible, I ask that discovery be completed and that valuable time in mediation not be used to review the other person's responses or production of documents. Many times, attorneys are working on a "shoestring" budget, and are not financially able to conduct expensive discovery. At the least, each party should be aware of the other party's financial standing in regards to pay history, accrued retirement, property held, accounts held, and debts owed. This can typically be accomplished with the agreement of the attorneys to comply with informal discovery and furnish to each other the required information. But what if one side does not have an attorney or the other attorney does not cooperate?
If a party is acting as their own attorney, better known as "pro se," and the other party is represented, I typcially see distrust on the part of the pro se party or see that they feel that they are automatically at a disadvantage. Granted, the attorney representing the other party cannot represent both parties, but that attorney can strive to create a rapport with the other party and attempt to build a trust through their words and their actions to the pro se party. As an example, rather than propounding massive discovery requests on the pro se party that they likely will not understand and see as threatening, invite the pro se party to agree to furnish the absolutely necessary information for your client to make an informed decision, and offer to provide the pro se party the information they need as well. What if the other attorney does not cooperate? Then it is up to the cooperative attorney not to be "hooked into" this uncooperative attitude, and strive to keep the mood as positive as possible, but do what is legally necessary to protect their client's interests.
What if both parties are pro se? Then it is more difficult for the mediator handling the matter. In high conflict cases, when both parties are pro se, they usually have no idea of what is needed to make a decision; there can exist strong feelings of mistrust of the other party, and such typically results in unreasonbale expectations on the part of both parties. The mediator's job here is to help the parties see and understand each party's needs and goals, the reasons why such are important to that particular party, and by doing so, hopefully create a common ground from which to work towards settlement. Some typical tools for this are reality checks, identifying each party's needs and determining if such are needs or just "wants." If parties can work together in the same room, many times each party can gain a better understanding as to why the other party has been "demanding" a particular item or request. Through understanding the other person's perspective, work can continue towards reaching the best possible outcome which can ultimately satisfy each party's needs.
Additionally, whether represented or pro se, each party should begin to think about the issues most important to him or her; try to determine where he or she can give and how much; and where he or she will not or cannot budge and why; and commit these ideas to writing for help in the mediation process. In mediation, no one person will get everything they want or will ask for, but hopefully each party can leave the mediation feeling ultimately satisfied with the agreement reached. When I begin a mediation, I ask each party what their three main goals are for the mediation. If children are involved, then I divide this further into goals for conservatorship, possession and access, child support, health insurance, and then ask that they explain those goals in relation to the best interest of the children.
Typically, mediations consist of joint and separate sessions. The joint session begins the mediation with each side summarizing their goals and desires or offering their "position" statement. The mediation is confidential whether it is conducted jointly or the parties are in separate rooms. The mediator, the attorneys, and the parties are bound by this confidentiality which typically affords a level of comfort for the parties to be open with their feelings and reasons. I will try to work with the parties as much as possible in a joint session since this gives each party an improved opportunity to try to understand the other party's perspective. However, when emotions are soaring too high, I will separate the parties into different rooms. Also, if the attorneys or parties have requested that they remain separate, I will respect those requests. The mediator will work with each party to narrow the issues and to find common ground from which to work toward agreement.
Not every mediation will end successfully by reaching a binding agreement. Some mediations solve only a portion of the issues reserving the remainder for the Judge to decide. Even if the mediation did not result in a binding agreement resolving all the issues, the parties, and or attorneys, have had a chance to hear and understand the other party's point of view, which hopefully results in better grasp of the issues at hand. However, when mediation can end in reaching a binding agreement, the parties can foresee life with fewer conflicts, may have learned ways to resolve disputes without court intervention, and may have gained a better understanding and respect for each other.
For more information or to schedule a Family Law Mediation, please contact Linda M. Schweitzer through her website at www.schweitzermediation.law.officelive.com
