What is Mediation?
Mediation is an alternative dispute resolution process where a neutral third party, specifically trained to mediate, serves to assist people with disagreements to come to creative resolutions. The mediator uses communication techniques such as active listening, reflecting back, reframing the issues, creative problem solving and interest-based negotiations.
In Michigan, mediation has evolved into two different processes: "facilitative mediation" which, in divorce cases, should begin in the early stages of a divorce; and "evaluative mediation" which is usually ordered by the court just before trial is imminent or the latter stage of a divorce. This latter mediation process is usually ordered in an attempt to settle a case without the need for a trial.
Both forms of mediation involve the appointment of the neutral third party, usually a family law attorney, to assist divorcing couples to reach an agreement on all of the disputed issues. Mediation can also be utilized to effectively resolve issues arising after a divorce.
Like the Collaborative Process, mediation gives the parties to a dispute control over the outcome of their case. The parties decide through the help of the third party neutral how their property will be divided, the financial arrangements between them and the important decisions that must be made for the care and custody of their children. The trained neutral mediator will provide a conduit for communication between the parties to learn how to resolve their own conflicts during and even after a divorce. The mediator can hone in on creative solutions that are specific to the family's needs and interests. A mediator cannot take sides or make decisions; the mediator is the manager of the process and guides participants toward their own satisfactory resolution of issues.
Mediation promotes communication and cooperation allowing the parties to take away valuable tools for the resolution of problems in the future. Parties sign a confidential agreement with the mediator stating that mediation is confidential and the negotiations and statements made during mediation can never be used in a future court proceeding if the mediation breaks down. The parties' confidential issues are never aired in a public forum, such as a court or in court document, nor does a final settlement have to be made a part of the court record. A trained mediator will help parents focus on the most important issues involving their children, so that the decisions about the children are a priority and in their best interests. Mediation is less expensive and accomplished in an organized and efficient manner. Most importantly, the parties have control over their decisions and are more committed to compliance with their own agreements.
Mediation can be started prior to filing a divorce or other domestic relations matter with the court. The mediator can be contacted by one or both of the parties and then will set up a meeting to begin the process. The mediator begins by interviewing each party to determine the issues. A thorough screening for domestic violence is completed prior to the signing of any mediation agreement. If appropriate, the proper security measures can be put in place or mediation may not be suggested if the mediator believes that because of domestic violence, mediation is not appropriate.
Once mediation begins, the mediator will thoroughly explain the process and the mediation contract. The parties will be given homework on gathering information regarding their income, their assets, their children, their expenses, their budgets and any and all information necessary to start negotiations.
Parties may also retain attorneys to offer legal advice throughout the process, so that once agreement is reached, the attorney can prepare the appropriate court documents necessary to finalize the divorce. The attorneys at this law firm are all specially trained family, divorce and custody mediators.
Mediation can be utilized even when a divorce action is already filed in the court system. It is an effective way to reach final agreements on all of the issues in the marriage and divorce. Most judges will require the parties attempt to settle through mediation prior to holding a trial, with the exception of those cases where domestic violence is present.
Advantages of Mediation:
- The Mediator assists with helping the couple communicate and cooperate.
- The parties make their own decisions, eventual settlement and future, instead of a third party making decisions.
- The reduced acrimony and conflict helps to maintain positive family relationships.
- Mediation is confidential. The parties' personal issues are not aired in a public forum.
Disadvantages of Mediation:
- Neither party can obtain advice from the mediator because of his or her neutrality.
- For legal advice, parties must hire attorneys for discussion of options to settlement.
- A dominant spouse may take over and the more submissive spouse may have difficulty expressing concerns without a lawyer present for advice.
- Attorneys may be part of mediation, but this increases expense.
I Want My Day In Court!
Really!? Contrary to what is promoted on television and in film, most judges do not want to hold divorce trials. Judges loath making decisions about children or hearing the "he said, she said" emotional issues regarding the reason for a divorce. Judges are highly uncomfortable listening to accusations involving distrust and acrimony between people going through divorce and will severely chastise parents who quarrel over their children.
Fortunately, most divorces rarely go to trial. Furthermore, divorce trials are very expensive both financially and emotionally. People rarely experience the satisfaction they think they will have to get "their day in court." Courts are crowded and the trial date is almost always delayed. Attorneys and parties gear up for preparation, only to find the court has rescheduled the day for another month away. Attorneys and the parties then have to prepare to get up to speed, once again, for the next trial date. This starting and stopping causes considerable expense both financially and emotionally to clients. Once a trial has commenced, it is often interrupted by other court business or is scheduled for one half day here and another half day there, such that there is no steady flow of the presentation of evidence and testimony from the beginning to the end. In some cases, witnesses are ready and waiting, having taken time off from work, but then not called after hours of sitting or they are not called on the date of trial because the court has required the parties to make another attempt at settling. Most frustrating is the fact that the judge often knows very little about the parties, their children, their property, or any of their issues. So often, judges just rule to make the outcome miserable for both parties. This is what happens after all the damaging testimony by each party is already done at trial. We often hear judges comment that if both parties are unhappy with the result, they have done their job!
Mediation provides input from the parties into their settlement. It forces them to take the emotional issues off the table and concentrate on making informed decisions based on each of their needs and desired outcome. When parties craft their own agreements, they are more often satisfied and much more committed to those agreements.
In mediation, the mediator works directly with the two parties. Everything about the parties' employment, financial situation, their children, their family, their health, their education level will be out in the open for discussion as well as the reason for the end of the marriage. The mediator will hold several sessions with agendas set for topics of discussion and minutes from the prior session to keep the mediation organized and the parties always knowing what will be discussed. Mediators often utilize flip charts to write down the parties' issues as they are identified and their agreements as they occur.
What is Evaluative Mediation or Late Stage Mediation?
When the parties have hired attorneys and are going through the litigation process and the trial date is looming, yet parties are still not settled, it is at this point the parties will make an attempt to settle at late stage mediation. This will occur after all of the information needed for trial has been provided through the discovery process. A mediator has been selected and mediation is scheduled with the hope of obtaining a final resolution.
Prior to commencing mediation, the attorneys prepare a mediation summary with this information as well as their client's view of the settlement. Mediation begins with the attorneys and clients in a conference room. The mediator sets the tone for the mediation by establishing rules of communication and the process he or she will take at trying to settle the divorce. Disrespect and attacks on the other party will not be tolerated. It is at this point that creative problem solving is crucial and good attorneys and mediators will work together to come to creative solutions to complex problems. If the parties are unable to remain in the same room, "shuttle mediation" or "shuttle diplomacy" will begin. This is where the each party and his or her attorney will be put in separate rooms and the mediator will go in and out between the parties and their attorneys and tackle each issue attempting to get concurrence from both sides. All conversations with the mediator are confidential.
At this point, the mediator is fully informed by each party of the nature of their disagreements. The parties to the mediation are able to freely speak to the mediator about their own needs and desires for a settlement. The mediator is then armed with enough information about each party to see where there are concurrences between the parties. In each room, with each client and each attorney, ideas are created to surmount hurdles to settlement. Each idea for settlement can be presented to the other side with possibilities from the attorneys, the parties or the mediator or a combination of possibilities and ideas. If there is no progress, the mediator may summon the attorneys to discuss thoughts for resolution to convey to their clients.
Once a settlement is reached, a written agreement is drafted or the whole settlement is recorded. This is important to prevent misunderstandings and disagreements on what was decided.
If the parties are close to settlement, but not finalizing, the mediator may make a proposal to one side. If that side agrees, he will present the same proposal to the other side, not letting that side know that the other side has already agreed. If there is an acceptance, then the mediator has settled that issue.
In some cases, the parties are just unable to settle. If the mediator believes that some progress was made, it may be a case that more information is needed. In that circumstance, a mediator may reschedule the mediation for another date. The parties will gather the information necessary and the clients and the attorneys will be charged with trying to come up with more ideas for a creative solution in the interim.
In late stage mediation, when no settlement is reached, the mediator will write a mediation statement which is provided to the attorneys, but cannot be provided to the judge. The mediator will state his recommendations for settlement and his legal and factual view of how the court may rule. This often effectuates settlement rather than the next step being a trial.
Facilitative mediation enhances a spirit of cooperation. When parties have an opportunity to provide input on what is most important for each of them, the outcome is much more satisfying. Late stage mediation involves more compromise and concessions, mainly because through the process of litigations the parties have become more polarized making cooperation much more difficult. In either process, the parties have come to their own solutions and outcome as opposed to a trial where they have no control over the Judge's decision and final order.