|Posted by Sarah I. Malik on September 16, 2013 at 2:05 PM|
Published in Lakelands Kentlands Life magazine - August 2013
What comes to mind when most people think about custody or divorce cases? Unpleasant, emotional, scary and stressful litigation. While some couples and families that are transitioning to a new phase of life participate in a legal battle, all do not have to. Most family matters can be resolved amicably if the parties are ready, willing and able to work together. One of the forms of Alternative Dispute Resolution is Mediation. Mediation is the process by which two parties, who may or may not be represented by counsel, meet with a 3rd party neutral mediator to help them reach joint decisions. The process requires listening, open-mindedness and hard work. If those considerations are kept in mind, it can be successful in resolving property, custody and financial supportissues. In its simplest form, mediators sit down with the parties for usually 2-4 hour periods of time and extract the needs and the wants of each person. The mediators then facilitate a conversation to help them reach an agreement on any matter.
So, when can mediation be used? When people realizethat their lives are going separate ways, they can immediately use mediation to resolve any issues. This is often the best time to do it before any litigation begins and the process becomes adversarial. In such a case, the parties should still seek the advice of counsel to ensure that they are considering all of their rights and needs. However, mediation can also be used simultaneously with litigation and if the parties reach a settlement, then the court will gladly welcome it.
Even after a family case is closed, people with children remain part of another’s lives foryears. Mediation is also a tool to keep in mind and use in the future when needs arise; for example, when a parentneeds to relocate or a child is beginning college and expenses need to be handled.
What if mediation is not successful? Even if it does not resolve any or some of the issues, the points that were made by both individuals during the session(s) can be helpful in future settlement discussions. Alternatively, the family court system exists to ensure that family disputes can always be resolved. A parent or spouse can always initiate acourt case and proceed through the traditional legal process. Even in such a case, the court encourages settlement and the court will review any agreement to ensure the issues have been appropriately resolved.
So why use mediation? Mediation is cost effective. If individuals are serious about mediation and use the time effectively,it can save thousands of dollars in attorney’s fees costs that add up inlitigation. In most cases, mediators charge their hourly rate per session, half of which is paid by each person. Sometimes cases that have moredetails may take more than one session, but if the parties work well together during the sessions, it can still be extremely cost-effective.
Most importantly, mediation keeps the parties in control and allows them to take an active role in determining their future. A judge determining a family case only hears hours of testimony and evidence but the court decision ultimately affects the children and adults for years to come. A judge’s decisions can also be unpredictable given the often subjective legal standards applied to family cases.
So whether you and your spouse are divorcing only after a few years of marriage or have been married with children for several years, do not believe that you are destined to participate in a battle over your kids and financial matters. You can resolve your differences amicably and with integrity.