Mediation
In every family law case there are efforts to settle the case without court intervention. The court encourages these efforts, and one very effective process to reach settlement is the process known as mediation. The parties are required to mediate in almost all cases before the court will hear a final hearing on the matter. We therefore do a lot of mediation.
In mediation the parties, with their attorneys, will gather with a mediator. The mediator is usually a practicing attorney who has been specially trained to facilitate negotiations. The process usually takes between 2 and 4 hours (although I’ve been in mediations that have taken more than 10 hours).
The process will start by the parties and their attorneys gathering into a conference room and introducing their case to the mediator. Not everyone feels comfortable with this first aspect of mediation, and I find it to sometimes be a non-essential part of mediation, therefore the introductory phase of mediation is often by-passed and we will move directly on to what is called the “caucus” portion of the mediation. We do not by-pass introductions in the majority of cases, but in a large minority of cases we do. So if you do not feel comfortable with the introductory phase of mediation let me know. The introductory phase can just as easily be accomplished in a caucus session.
After the introductory phase of mediation we move to caucus. Which means the parties, with their attorneys, will go into separate and private rooms. The mediator will then “caucus” with one side in their room. This caucus session may take more than an hour (sometimes less, sometimes more). The mediator will then caucus with the other side. The process will continue in this fashion until we have reached settlement, or an impasse in the negotiations. Sometimes a second mediation will be scheduled; sometimes this will be it for mediation. During the mediation process the mediator may request to speak only with the attorneys, or may request to speak just with the parties. It depends on what the mediator thinks needs to get done to move the process forward.
The mediator is a third-party neutral. He or she is not the judge, and the mediator will not be giving a report to the judge. What you tell the mediator is confidential and will not be admissible in any future hearing in the matter. In caucus we can instruct the mediator that he or she is to keep everything we say or reveal privileged or we can give the mediator permission to reveal certain information to the other side. It is sometimes advantageous to spill some of the cards that we have to move mediation along. Sometimes, however, you do not want to reveal this information before you have to.
At mediation it is usually best to let your attorney do most of the talking at the introductory phase, and at any phase where the other party is involved. In caucus however feel free to talk to the mediator. Keep in mind however, that convincing the mediator of the justness of your case accomplishes nothing as the mediator will neither be judge nor jury in your case. The mediator simply attempts to facilitate settlement of the case and has no stake in the outcome of the case otherwise.
The mediator cannot force you to settle, or force you to do anything. Only you and your attorney can agree to reach settlement or not at mediation.
A weakness of the mediation process is that the mediator’s charge is to reach settlement, and the mediator has no interest as to what settlement is reached. Reaching a bad settlement is worse then no settlement. So keep this in mind as to where the mediator is coming from. The mediator is trying to settle the case, and does not have to live with the consequences. You are there to try and get a good settlement to meet your needs. Therefore your motivation to be there and the mediator’s motivation to be there are not one in the same. The mediator will help you settle your case, but you need to make sure the mediator does so in a manner consistent with your needs.
As to how to prepare and approach mediation, the first thing you need to do is realistically assess the strengths and weaknesses of your case, understand the risks if settlement is not reached, and know what you want out of it as a settlement. Go into mediation with an understanding of these things and you can comfortably negotiate through the process. Mediation does not exist in a vacuum. The results of mediation largely depend on how each party perceives the strengths and weaknesses of their case and their understanding of the risks in the case. You need to go in putting on an heir of confidence, and the perception that you are strong willed on the issues that you want resolved. Do not put out signs of weakness or fear. Posturing is something that both sides do in mediation, and it can be very effective to move the negotiations in a more favorable light towards what you want to accomplish.
This may be your first mediation session. You have an experienced attorney there with you because they have been through this many times before. That attorney will assist and guide you through the process, even as you assist the attorney. After all, who knows how the other party thinks better than you. Working together you can form a very effective negotiation team.
Does mediation work? Yes. I am always surprised at how many cases we successfully settled (meaning a good settlement based upon the relative strengths and weaknesses and risks of the case). It is not a good settlement if you just settle to be “nice” or to get it done. From enormous experience, settling from these motivations produces nothing but headaches and literal nightmares post-divorce. It is not something that you want to do. But yes, good settlements much more often then not come out of the mediation process, even in many cases that I did not think we were going to be able to settle. It is surprising what happens when you take two parties, partner them with good attorneys who often cause the parties to see the case with a more practical perspective, and boom, out of nowhere a good settlement is reached! So the process can and does work. Many more cases then not will settle at this stage.
However, not all cases settle at the mediation stage, and not all cases should settle at this stage. We will not settle unless settling at this stage is right for your case. Some parties remain incorrigible and just won’t settle. Some parties should remain incorrigible and just not settle because what is being offered as settlement simply is not what that party should settle for. All that is required in mediation is a good-faith effort. If it does not work, then it does not work and we move on to prepare for trial.
As for protocol for mediation, you do not need to dress up, but do dress in a business casual type fashion. Each party in mediation will pay the mediator 50% of their fees at the end of the mediation. So please bring your checkbook. Your 1/2 share of the fees for a typical 4 hour mediation will usually run around $300-$500, and mediators are paid the same day. Some counties offer free mediation services (Fulton County is one such county). Most counties however require the parties to pay for the mediation session. It is best to do a lot of listening, and less talking, when the other party and attorney are present. There are exceptions to this last rule however and we can discuss this prior to mediation. The place of mediation is usually at the office of one of the attorneys, but it can also be at the courthouse, or even at the mediator’s office. The location of mediation is not usually a critical element. I just prefer it to be a comfortable location that is easily accessible, so don’t worry too much about the location. There is no home field advantage in mediation that I have discovered.
This is just a general outline of what mediations are and how they work. Each case will be handled differently for mediation, the strategies will vary, the nuances, posturing, preparation will be different for each case. But the above is the gist of what mediation is all about.
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Scott Shaw is founder and principle of Shaw Law Firm LLC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309.