What is the impact of "late stage mediation" or "shuttle mediation" on divorce?
July 7th, 2015
Almost all family division judges require divorcing parties to go to mediation before they go to trial.
This is why mediation is often called "late stage" mediation. It is the "last stop" before presenting any remaining unresolved issues before the judge at a trial.
What typically happens in a traditional divorce?: One or the other spouse (plaintiff) files for divorce and serves the other spouse (defendant) with a complaint for divorce and other documents or orders which begin the divorce.
The defendant spouse is then provided ("served") with these initial court documents and hires his or her own attorney and files an answer and possibly a counterclaim for divorce and maybe objections to any temporary orders initially obtained by the plaintiff spouse.
From that point on, the parties may or may not appear in court once or numerous times to resolve any temporary issues that arise, not settled between them or through their attorneys. This is termed "motion practice." To obtain this temporary relief while the case is pending, lawyers file motions, which are written documents laying out the issue needing to be decided by the judge. Often a brief will accompany the motion to lay out the legal reasons the judge should grant the requests of his or her client. The other attorney, often called "opposing counsel," will file an answer to the motion document and possibly an accompanying brief laying out his or her client's position on the issue. Then the plaintiff and defendant and their two attorneys appear in court on "motion day" for oral argument of their requests in front of the judge. This can happen numerous times, or never at all, or only once or twice, depending on the issues arising during the pending of the final divorce. All of the decisions made by the judge at this stage of the process are only temporary. Judges are not permitted by law to make any final decisions without the presentation of evidence at an evidentiary hearing OR at a trial.
So, in the meantime in the case, a period of "discovery" commences. This is when each attorney goes about discovering all of the information about the marriage, the children, the income, the debt, and all of the property or assets of the parties. This can be done by a variety of discovery tools: Sending out subpoenas directly to banks, credit card companies, employers, etc.; Sending the other party a list of questions called "interrogatories" to be answered individually under oath; Sending the other party a request to produce documents with a list of documents to be provided by the other spouse; Sending out a "request to admit" with specifically tailored questions that must either be denied or admitted and failure to answer within a very short time will automatically be considered by the court to be admitted; Conducting depositions where a person or a party to the divorce is placed under oath and a court reporter records all answers to the deposition questions asked by the attorneys; hiring experts to do valuations or appraisals of real estate, other property or businesses; hiring other financial professional experts; hiring mental health professionals for either psychological evaluations of the parties or for custody evaluations regarding the children; hiring experts regarding employment issues. During this discovery phase, the court will also schedule dates for both spouses and their attorneys to appear in court for early intervention conferences, status conferences, case management conferences, settlement conferences and/or pretrial conferences. The court schedules these appearances for the purpose of keeping track of its docket and what issues remain before finalization.
In the meantime, the discovery process can take a long time usually several months - with nothing productive happening in the divorce during that time. There is no way to speed this up or stop it, unless both plaintiff and defendant come to some agreement and both tell their attorneys to stop and finalize as soon as the court will allow, or dismiss the case .
During this "waiting period" the court has ordered the scheduling sequence of when things have to move along in the case, such as when the discovery period ends, when a trial witness list has to be presented to the court, when expert witnesses have to be named for the court, when appraisals of property and valuations must be completed, when exhibit lists are provided to the court and when trial brief must be submitted to the judge. A pretrial date and a trial date will also be decided by the judge's calendar and provided to the attorneys. In these same scheduling orders, a mediator will be named and a deadline for mediation will be scheduled. This is the "late stage mediation."
So what is the impact of "late stage mediation" or "shuttle mediation" on divorce?:
First it is important to remember, either nothing much has happened for months and months since the filing of the divorce OR the parties have been in numerous motion battles before the court where the judge's temporary resolutions are never totally satisfying to either person and just solidify their animosity and positional demeanor.
So, at this point in the traditional process, both are anxious and frustrated, both are still in a state of limbo, both are fighting more than ever, both are even more aligned with their own position, and both are much more polarized since they have no idea what to expect or what or how the other side is plotting or strategizing. Any and all respect for and trust of the other spouse is completely destroyed by this time in the traditional divorce process.
So now, it is time for the mediation, an alternative dispute resolution process.
Well, there is no way to put these two people in the same room to make productive decisions, right? ABSOLUTELY RIGHT. Hence, the term "shuttle mediation." The mediator shuttles back and forth between the room with wife and her attorney and the room with husband and his attorney. The mediator tells each party what he/she can and cannot do as a mediator, and what he/she thinks the judge might do in their case. A mediator is a neutral party but has no power to make any decisions. All good mediators work hard to accomplish a final resolution and at this point in the case, it is a very difficult endeavor, so late stage mediators deserve lots of credit.
The mediator therefore gets as many agreements on the outstanding issues as possible and works back and forth trying to get agreements on all of the remaining issues. This can take a few hours, all day, several different days or as long as it takes if some forward progress is being made.
Most divorces are settled at this late stage for several reasons: They are pushed by fear of trial; they are disgusted and want it over; they do not understand precisely what is agreed on and they don't indicate they don't understand; they have run out of money to keep fighting; they are broken down emotionally; or because of any myriad of other reasons too numerous to mention. The mediator either takes sworn testimony on the agreement from each party using a video or audio recording or drafts an agreement signed by both parties. This is now a final, binding, settlement agreement (or at least this is what the law and court rules say it is supposed to be).
Neither party had any opportunity or the time to actually process their agreement. Neither party was given any time to review the entire agreement at one sitting. Neither party had the ability to request a "tweak" here or there. Oftentimes, people are stuck on one issue and other issues sneak by and are finalized without the person's full understanding or agreement. Most people are fearful of mediation. The more difficult person gets more of the mediator's attention in an effort to get a final agreement. So the major impact of late stage/shuttle mediation is "Buyer's Remorse." People then fight to change what was agreed and refuse to cooperate with getting the document in a format that the judge can sign. So instead of alternative dispute resolution, this type of mediation very often adds to the adversarial nature of the divorce process. People are reluctant to commit to something when they feel coerced or forced into agreement and do not have their own stake in the resolution of a problem. The attorneys are required by court rule to encourage the finality of a mediation agreement and clients are unhappy at that point with the outcome, resulting in numerous post-divorce issues coming back to court for resolution. The parties never have the opportunity to learn how to resolve their conflict in the future, and conflict will arise when people have no stake in the final result. There is simply no healthy closure to the traumatic event of the divorce.
Call 248.258.2828 for more information on "Collaborative Divorce" and "Pre-filing or Early Stage Facilitative Mediation," the respectful, dignified, and constructive ways to resolve conflict keeping the family as the primary concern when going through divorce.