Avoid the Courtroom: How Mediation Gives You Control in Divorce

Family Law Mediation Explained: Process, Benefits, and What to Expect

As many as 90 percent of all family law cases settle in the form of alternative dispute resolution, typically because the parties ultimately want some control over the final outcome, especially when it involves the future of their families and their finances. 

While there are multiple types of alternative dispute resolution mechanisms, such as arbitration and collaborative, the most common is mediation. 

Understanding Mediation and Why 90 Percent of Divorce Cases Use It

Mediation is a process where a neutral third-party – called a mediator – communicates separately with each client and attorney in an attempt to bring the parties to a middle ground and agreement that each side can live with.

Most attorneys and judges will tell you that a case ending with an out-of-court resolution is preferable to going to trial for many reasons. 

Mediation also gives parties ownership and real control over specific issues and details that a court simply cannot provide. For example, if spouses have abnormal work schedules, they have a better chance of crafting an arrangement customized to their situation at mediation than getting it from a judge.

“I have found a major benefit, besides the ability to craft an agreement unique to the couple, is reduced animosity,” says family law attorney Jessica Reece Fagan. “When a family law case goes to trial, it is costly – both emotionally and financially. Going to court often forces parties to air all their dirty laundry in a public forum, which can be hugely detrimental long-term, especially as it affects the children.”

Another reason is the reality that judges are bound by strict legal parameters and busy court schedules. They simply have very little time and tend to make decisions with a hatchet, not a scalpel. 

Do I Really Have to Sit Across the Table Staring at My Ex?

The good news is that the parties are rarely in the same room. 

In a divorce mediation, the parties are often in caucus, which means each party and their attorney(s) are in separate rooms. This set-up allows all parties, as well as the mediator, to be very honest and candid. The mediator starts in each room to explain the rules of the mediation. Once rules are clarified and guidelines are signed, the mediator listens to opening arguments and initial offers.

Then, the mediator moves between rooms to pass along offers and challenge each side to move them towards a resolution. It’s crucial to discuss your best- and worst-case scenarios with your attorney upfront, ensuring that you are well-prepared to make decisions that support your goals and ideal ending point.

The duration of the mediation process varies depending on the issues at hand. Some mediations focus only on limited issues and are finished within a few hours. Other times, it takes a full day to complete the process, while some circumstances require multiple sessions over multiple days. To prepare, it’s helpful to discuss the expected timeframe with your attorney. Attendees are encouraged to bring a book or something to do during the downtime and also make sure childcare is in place if needed.

How Confidential is Mediation? 

Mediation is completely confidential, with limited exceptions. For example, a party cannot subpoena the mediator to come to court to testify about what happened. However, there are some instances — such as threats of violence or child abuse — that are not protected by confidentiality and will be reported. 

Additionally, mediation is typically attended only by the parties involved and their attorneys. If one side prefers that a friend or family member attend as well, it is decided on a case-by-case basis and can be influenced by the opposing party’s opinion. If a third party is allowed to join, they may be asked to stay in another room while decisions are being made. Conversely, they may be allowed to sit in if the mediator considers them to be an asset to finding a resolution.

The Other Side is Completely Unreasonable. Is Mediation Still a Good Idea?

Even if the other party is unreasonable, we still advise our clients to attempt to resolve the case in mediation. It’s important to demonstrate a good-faith attempt to resolve the case out of court. In many instances, it’s even a requirement of the judge to attempt mediation in a good-faith attempt to at least narrow the issues during mediation. 

Another benefit to mediation? A good mediator highlights strengths and weaknesses in arguments, which also helps a party effectively determine for themselves the pros and cons of settlement or hone their strategy for a future hearing or trial.

Does Either Side Win at Mediation?

“A successful mediation is often when both parties feel like they won and they lost,” says Fagan. “Good mediators play devil’s advocate with both sides, putting pressure on the parties to settle the case.”  While most family law cases settle at mediation, the ultimate decision is always up to the involved parties. If you are not comfortable with the terms, you do not have to settle.

At Fagan Law Group, we encourage our clients to remain flexible during mediation. However, if one side feels as though they are bending too much, the client is advised to revisit their goals and guidelines and move forward accordingly. 

If you have questions about an alternative dispute resolution process, including mediation, or about other family law matters, the team at Fagan Law Group is more than happy to assist you through this process.

[Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Every divorce case is very fact-specific and unique, and outcomes will vary based on individual circumstances.]