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Monday
Feb072011

Legal Pad: Mediation: what is it? Why am I here?

Mediation:  what is it?  Why am I here?

By M. J. Goodwin

www.mjgoodwin.com

         Anderson County Family Court has a mandatory mediation requirement.  This was implemented in 2002.  Mediation is required before a party can even request a final contested hearing.  I completed my mediation training in 2002 and do a fair number of mediations each year. 

         Mediation is an informal process that allows opposing parties of litigation to meet with a neutral (the mediator) in an atmosphere that facilitates communication, with a view to resolving differences outside of court.  Mediation gives the parties a chance to make the decisions, with compromises that are implicit in settlements, rather than having a stranger (the Judge) make the decisions for them.  Studies have shown that resolutions reached by agreement are generally more satisfying for the litigants than Court determinations.  After all, who doesn’t want to have some control in the most personal parts of his or her life?  So what should one do to have a successful mediation?

         There are as many opinions on mediation as there are attorneys and litigants.  Like most things in life, you will get out of it what you put in it.  This point was driven home for me recently at a seminar.  A speaker who does a mostly mediation practice stated that an attorney would never dream of going to trial unprepared; with mandatory mediation, more cases are now mediated than tried.  So why do attorneys and litigants come to mediation unprepared? 

         That begs the question:  what preparation should be done in anticipation of mediation?  Again, the answers are as varied as the responder.  I like to see each party make a full financial discloser prior to mediation.  This includes a financial declaration on the court approved form, of course, but also goes further.  As a mediator and as a litigant’s attorney, I want to see the statements of the retirement accounts from both prior to the separation and at the time of the mediation.  If there is a lot of credit card debt, I want to see the bills.  Tax returns from the last five years of the marriage are useful.   Statements of net worth are useful.  Child support guidelines should be run in advance.   If alimony is a consideration, the alimony calculator should be consulted.

         For issues involving children, I want a Guardian ad Litem report if one has been done.  If not, then I want to speak to the Guardian ad Litem.  If there is not a Guardian ad Litem, I will assume it is not really a contested custody case.  If it is a contested custody case, I would like for both parties to make a reasonable proposal as to the amount of contact that he or she would like to have assuming that the OTHER SIDE wins custody.   To truly consider that question, the party must consider the possibility that he or she will not prevail on the issue of custody.   That sort of thinking leads to settlements.   Children generally suffer the most in custody cases.  It is by far better to settle the custody issues if at all possible.

         Litigants should really think about the issues and they resolutions that they are willing to consider prior to sitting down with the mediator.  If they do not do this, they are very likely wasting time and money.  It is helpful if the parties have exchanged settlement offers and even more helpful if they have several different acceptable scenarios in mind.  It is important to know what issues are most important to both parties.  I have mediated cases involving expensive vacation properties and cases involving essentially worthless (but sentimental) personal items.  I have mediated cases between bitter, warring parties.  Some have reached agreements; others have just wasted time and money.  The primary factor in whether or not a case settles at mediation is the amount of preparation that the attorneys and litigants put into the mediation process.



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