The Growth of Mediation in Family Law Cases
Introduction
Many people claim that the United States of America is a litigious society. There are many reasons for the large amount of litigation in this country. Some of the reasons given for a large amount if litigation is that the law in this country is more developed, lawyers are more rampant; people are willing to sue for more reasons, and more. With the large amount of litigation hitting courthouses today, there has been a move in recent years to cut back on the number of lawsuits and court cases in the United States. Alternatives have been presented for taking cases to court. The alternatives to litigation typically fall into the category of alternative dispute resolution. Alternative dispute resolution available for people, today, include negotiations, mediation, and arbitration. The use of mediation is especially popular to solve problems that arise in cases that fall into the category of family law. There are many reasons that the use of mediation as a form of alternative dispute resolution many be useful in family law cases. Mediation helps to cut back on the contentious nature that a lawsuit can generate. Therefore, the use of mediation may help to salvage a relationship that may have been damaged if the regular legal processes had been used to solve the dispute. Furthermore, mediation gives both sides a ‘chance to be heard’ which may be important in family law cases. Many feel that the court system gives the law a chance to be argued, but not the parties a chance to be heard. Mediation offers the opportunity for parties to be heard in cases of a personal nature such as family law cases. This is especially important in cases where some of the outcomes that a person is seeking are not considered to be of a legal nature. In many cases that fall into the category of family law, the outcome or result that a person wants may not be solely monetary compensation or other things that fall under the court’s jurisdiction. Mediation offers a chance for both parties to voice what they want and for the parties to agree upon non-legal resolutions. Therefore, mediation offers a chance for a formal legal process to resolve the dispute without the adversarial process of the court system to preserve relationships between the parties. Throughout this paper, I will discuss the growth of the use of mediation in family law case including what mediation is, the benefits of mediation, and the cases for which it is appropriate.
What is Mediation?
Mediation is an alternative dispute resolution process where a third party neutral mediator is used to help two or more parties negotiate an amicable settlement to the dispute. It is a structured negotiation process where the mediator helps the parties reach an agreement on a particular legal matter. It is a private and confidential process which helps to make it suitable for resolving family law matters. Mediators are trained and certified in the alternative dispute resolution technique of mediation. One technique that mediators use to help the parties reach an agreement is dialogue. The mediator helps to get the parties talking about the matter so that all underlying issues are put on the table. Additionally, the mediator will use empathy, or try to get the parties to understand the opposing parties’ stance on the issue. This understanding may help the parties to more readily reach an agreement (See Hedgepeth).
It is important to note that when parties enter into mediation regarding a legal matter, they still retain their legal rights. Therefore, if the mediation sessions do not end in the resolution of the matter, the parties still have the option of taking the matter to court and getting it settled by a judge.
There are a number of mediators that specialize in resolving family law matters. These mediators, often former family law attorneys or family court judges, have knowledge of what solutions and outcomes are offered in court and uses this as a guide when trying to help the parties reach an agreement on a particular matter. Therefore, family law mediators have a great deal of knowledge and skill and can be a great resource when trying to resolve family law matters.
Family law mediators may be used to resolve such matters as prenuptial agreements, financial disagreements, separations, divorces, alimony, child visitation, estate matters, and family business matters. Oftentimes, the parties in these disputes cannot come to an agreement on their own and need some help from an outside source. The fact that a dispute exists does not mean that the relationship has been completely severed. The mediation process is often less contentious that a legal court process. It gives the parties a chance to have an open dialogue about the matter and try to come up with a solution that will work for both parties. The court may not try to ensure that both parties are happy with a solution gained through litigation. Courts tend to favor the law. The preference for the law may not be the best solution for either party in a family law case, as oftentimes even the party with the law on his or her side does not want to alienate the other party with a resolution that the other party will feel is unfair. Therefore, the mediation process in family law matters can serve to retain relationships between parties who have a disagreement on a particular matter.
It is important to note that, in family law cases, not all mediators are former attorneys and judges. The mediator practice is not regulated the same way that the attorney practice is regulated. Therefore, many mediators may be former social workers or psychologists. These mediators may be highly qualified just as attorneys are. However, the credentials that one must possess to hold him or herself out as a mediator is not always regulated. To try to remedy this problem, “various state and local court systems have also adopted practice standards and/or minimum qualifications for mediators” (Singer, 1992). Therefore, it is important to look at the regulations in your area as well as the number of cases that a mediator has handled and his or her background and education regarding the subject matter before selecting a mediator for your case.
The Benefits of Mediation
There are several benefits to mediation. The first benefit to mediation is that it keeps costs low. The costs of litigating a case in court are can oftentimes be extremely high. For this reason, many parties to a dispute choose to resolve the matter through the mediation method as a way of keeping costs low. One reason that a mediation is less expensive is that it does not take as much time as litigating a case in court does. Therefore, the fee that you would have to pay an attorney, either by the hour or for the duration of the case, is reduced because the amount of time it takes to resolve the matter has been reduced. There are some costs involved in mediation of which one may want to be aware. A mediator does charge a fee for conducting the mediation process that may be comparable to that of an attorney. In addition, a party to the mediation may want to retain an attorney for the mediation, depending on the matter, to assist with the legal arguments. In some jurisdictions, a mediator may be provided to parties involved in a family law matter dispute at no cost. Therefore, you may want to check with your county court to find out what mediation services are available in your area and what the price for the service is.
Another benefit of mediation is that it gives the parties more control over the resolution of the matter. In mediation, the parties are often asked how each wants the matter resolved. In many cases, where the dispute is not solely about money, the court may not have the power to grant the resolution sought by the parties. ‘Non-legal’ solutions and resolutions are available in mediation is the parties agree to these resolutions. In addition, the parties propose what positions they are and are not willing to compromise on in the mediation. Keeping these positions in mind, the mediator guides the parties to a mutually agreeable middle ground that both of the parties are willing to agree to. Therefore, mediation allows the parties to feel that they have a say in the outcome of their legal matter.
Furthermore, in the majority of instances, mediation proceedings are kept confidential. Court cases, on the other hand, may not be confidential. Court cases go on the record and are open to the public. Mediation proceedings, however, are not. Therefore, if parties want to keep a legal matter confidential, they may seek mediation as an alternative to litigation. Confidentiality is especially important with matters that are considered to be private such as those that are involved in family law cases. Family law cases may deal with sensitive issues that parties may not want on a public record. Mediation allows the parties to keep the matters private while still affording them the opportunity to get their legal matter resolved. If is also important to note that if the matter does not get resolved amicable in mediation and does end up in court, a mediator cannot be forced to testify against one of more of the parties concerning the information that the mediator learned in the mediation. However, if an agreement is reached in mediation, the mediator may be called into court to testify as to the terms of the agreement. If one party later breaches the agreement, the terms to which the parties has agreed may be introduced in court, and the court may take this into account when determining the resolution of the matter.
Additionally, it may be easier to get parties to comply with solutions and resolutions obtained through mediation because each party had a say in how the matter was resolved. The feeling that this was the resolution that the party agreed to may make the party more likely to comply with the resolution. In cases involving child custody and visitation the desire of both parents to comply with the agreement is important to the child’s life. The fact that the parents were able to come to an agreement in mediation may make both parties more likely to adhere to that agreement. The article “Child Custody mediation and Litigation: Custody, Contact, and Coparenting 12 Years After Initial Dispute Resolution” argues that long-term data shows that of parents who were randomly assigned to mediation, noncustodial parents had more influence in the child’s life over time, and the parents were more cooperative and flexible with each other.
Growth of Mediation in Family Law Matters
In recent years, the use of the mediation process to resolve family law matter has risen greatly. One thing that has increased the growth of the use of mediation in family law matters is a mediation requirement in many jurisdictions regarding certain family law matters. In some jurisdictions, before a matter can be brought into court, the parties to the matter must attend a mediation session. Cases involving child custody and visitation and other issues regarding a minor child are examples of the type of cases that are referred to mediation. The court may order parties to try to work the issue out in mediation; only if the matter cannot be settled through the mediation process are the parties allowed to bring the matter before the court for the court to adjudicate a settlement on the matter. “The rise of court-connected mediation was accompanied by a flurry of state legislative activityIndividual jurisdictions also jumped on the mediation bandwagon. Between 1973 and 1985, at least seventy-eight divorce mediation programs were initiated in various court systems across the country. By 1988, court-connected divorce mediation had been implemented in one form or another in thirty-six states and the District of Columbia, with more than 120 programs operating nationwide” (Singer, 1992). The first state to mandate mediation in child custody and visitation disputes was California in 1981 (See Singer 1992). Many jurisdictions have this requirement because they feel that an open dialogue as well as empathizing with the other party is in the best interest of the child when a family law matter is at issue. In fact, proponents of mediation have gone so far as to argue that mediation should be mandatory in many cases involving children; “mediation should be mandatory for virtually all parents disputing child custody matters” (Salem, 2009).
Furthermore, court may have a mediation process to cut down on the backlog in the court. “Inside the Minds of America’s Family Law Courts: The Psychology of Mediation Versus Litigation in Domestic Disputes” states that as “judges have struggled to keep up with their ever-growing dockets,” many court systems have promoted the use of alternative methods of dispute resolution to try to cut back on litigation (Ezzell, 2001). Many times matters can be resolved through discussion and mutual agreement; however, the parties have to take the time to try to settle the matter without going to court. Therefore, requiring that parties to a family law matter first attend a mediation session, help to take cases that did not need to be in court out of court and gets them resolved efficiently and effectively.
The are those who believe that the use of mediation to resolve family law matters is a new phenomenon, and other who feel that that it has been around for a while in family law cases. In an article appearing on mediate.com, the author states, “as someone who was present at and an active participant in the beginning of the modern development of mediation in the early 80’s I would urge that we maintain a perspective on the growth and evolution of this field in the past 25 years” (Kleiman). Although things such as court order mediation may be new in many jurisdictions, the option to have a family law case mediated by a neutral mediator has been around for a while. The process has grown and changed over the years and has now become more widely use in family law cases.
The reason for the more wide spread use of mediation in family law cases could be the recognition of the courts of the importance of preserving the relationship between two parties to a dispute in a family law case. A the divorce rate increased and child custody disputes began to rise in this country,
The Mediation Process
The mediation process is a formal process for dispute to be negotiated and a resolution to be reached. To start the mediation process, oftentimes, a petition is filed with the court stating what the matter is that needs to be mediated. After the petition is filed, the parties are often required to attend the mediation orientation session. In some jurisdictions, the parties to the matter meet with the mediator. In family law matters, in many jurisdictions, parties are required to attend a mediation session to try to resolve the matter before they can bring the matter into court.
In a mediation session, the mediation will try to set a comfortable stage where each party can present his or her position. To do this, the mediator often sets rules for the mediation process that restrict the use of certain language as well as any forms of pressure and intimidation that a party may seek to use to cajole the other party to agree to the outcome that he or she would otherwise not have agreed to. When the mediation is a court requirement, the mediator often conducts discovery in must the same way as it would be in the court process. Additionally, parties are expected to, and often instructed to, show up to the mediation prepared with all of the documents that they would need to present their side. After the parties discuss with the mediator, the story or problem for their prospective, the mediator will identify any issues that may be preventing the parties from resolving the matter. The mediator will get the parties discussing the issues and find out what types of solutions will be agreeable to both of the parties. At this point, the mediator will get both parties moving toward a middle ground where each party can be satisfied with the solution. Next, the mediator will fine tune or adjust the agreement that was reached between the parties in the dispute. After the agreements is fine-tuned or adjusted, the mediator will often draw up an agreement, or place the agreement between the two parties in written form. The parties may be asked to sign a mediation agreement, or it may be subject to ratification and review by an external reviewing body.
Conclusion
The use of alternative dispute resolution methods has grown throughout this country in recent years. One such alternative dispute resolution methods is mediation. Mediation is a structured negotiation process where a neutral mediator opens a dialogue between two disputing parties. Furthermore, the mediator urges the parties to empathize with the opposing party to the dispute. The mediator uses these techniques to guide parties toward and agreeable settlement. There are a number of benefits to the use of mediation. It helps to save costs. Furthermore, it is confidential. Additionally, the parties to the agreement are more likely to adhere to is since they had a part in it. Moreover, mediation keeps the courts from becoming backlogged with cases that can be settled out of court. The use of mediation in family law cases has grown in recent years. One reason for the growth of the use of mediation in family law cases is that it is often ordered by the court. Additionally, mediation helps to preserve the relationship between two parties in a way that taking the matter to court does not. The mediation process may be started by the filing of a petition, a party seeking out a mediator, or the court instructing parties to attend mediation. The mediator guides the parties to an agreement and then documents it in writing. The agreement may be signed by the parties or subject to review and ratification.
Works Cited
“Alternative Dispute Resolution.” Hedgepeth, Heredia, Crumrine & Morrison.
Emery, Robert E.; Laumann-Billings, Lisa; Waldron, Mary C.; Sbarra, David A.; Dillon, Peter.
“Child custody mediation and litigation: Custody, contact, and coparenting 12 years
after initial dispute resolution.” Journal of Consulting and Clinical Psychology, Vol 69(2),
Apr 2001, 323-332.
Ezzell, Bill. “Inside the Minds of America’s Family Law Courts: The Psychology of Mediation Versus
Litigation in Domestic Disputes.” 25 Law & Psychol. Rev. 119.
Kleinman, Mark. “A Perspective on the Growth and Evolution pf the Field of Mediation.” Internet Bar
Organization. July 2006. Web. 13 April 2014.
Salem, Peter. “The Emergence of Triage in Family Court Services: The Beginning of the End For
Mandatory Mediation.” Family Court Review. Vol. 47 No. 3. July 2009. 371-388.
Singer, Jana B. “The Privatization of Family Law.” Wisconsin Law Review. (1992) Wis. L. Rev. 1443.
