Why mediate?

Posted Saturday, October 16th, 2010 by Gregory Forman
Filed under Mediation/Alternative Dispute Resolution, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I have represented litigants in family court mediation for over a decade and been a certified family court mediator for a little over a year, slowly–more slowly than I had hoped–building a mediation practice.  At the start of cases I mediate I like to bring the litigants together and provide them a short spiel [this blog represents a greatly expanded version of that spiel] to help them understand the benefits of mediation and instill the expectation that they will resolve their dispute today.  I have borrowed liberally from the ideas of others (thanks Barry W. Knobel and other mediators whose wisdom I am failing to attribute because I cannot remember from whom I am borrowing).  Since the information is meant to be conveyed directly, I use the second person.  Mediators, and attorneys for litigants who are entering mediation, are free to borrow this spiel.  However, since I made the effort to write it down, I would ask for attribution:

Why mediate?

There are three reasons litigants should prefer mediation over having a family court judge decide their domestic dispute: control; finality; and cost.

When you let a judge decide your domestic dispute you hand control over significant aspects of your life to another person.  The judge will do his or her best to decide your dispute but it will be hard for that judge to know what you truly value and what’s less important to you.  At a family court trial it can be strategically difficult to convey one’s hierarchy of goals to the judge.  Letting a judge know that one issue isn’t so important if you prevail on another issue almost guarantees you won’t prevail on the less important issue if the other side values it.  Thus, the tendency at trial is to treat all issues as important and hope the judge rules in your favor on most issues.  However many a litigant has been upset to learn that he or she won on numerous  issues of minor importance but lost on a few issues of major concern, with the judge oblivious to what that litigant found important.  Further judges often fashion blunt remedies or fashion remedies in which both parties might have been happier had a particular matter resolved differently.

In mediation, one has control over the decision making process.  Issues of vital importance can be better protected through the negotiation process than through trial. Issues such as visitation or legal decision making for children can be resolved in a more detailed fashion that can be beneficial to both parties.

Further, even if you don’t get everything you want in mediation, you get to decide what you are willing to give up and what you won’t give up.  Assuming mediation results in an agreement, you have controlled every aspect of that agreement and have maintained control over where to compromise and where not to compromise. Finally, you can agree to certain things in mediation that a family court judge could never order or could not order in your particular case.

One reason the litigation process is demeaning is that it is dis-empowering: you lose control over important decisions regarding your life when you allow a judge to make these decisions for you.  Owning the resolution of your domestic dispute–as opposed to having that resolution judicially imposed upon you–is empowering.  Mediation helps give you back that power.

If you settle a case through mediation in Charleston County and have an executed agreement, you can usually get a court hearing to get the agreement approved, and if seeking divorce to obtain the divorce, within weeks.  I have had such agreements approved and made a final order of the court on the same day as the mediation.  It’s a short journey from mediated agreement to the end of the case, which means the end of paying your attorney and, if divorcing, the freedom to pursue other romantic relationships.  As many clients tell me when their case has resolved through mediation and they have obtained a final order resolving their dispute, there is tremendous relief in knowing the case is over and you can move on.

In contrast, failing to resolve a domestic dispute by agreement requires a resolution via trial.  Court time is a very limited resource and docket time for trials is even more limited.  Many complex custody or divorce issues can take days of trial time.  Expect it to take six months or longer from the time a multi-day trial request is made until the time of trial.  After trial, a judge can take weeks (occasionally months) to issue a preliminary ruling and then it can take additional weeks to have the order drafted, signed by the judge, and filed with the court.  At that point either party may file a motion for reconsideration, which takes months to resolve.

Then either party can appeal, typically to the Court of Appeals.  It’s often two years (or more) from filing the notice of appeal to receiving the written decision.  At that point, either party may request rehearing and, when rehearing is denied, that party can seek review from the Supreme Court.  Merely seeking review from the Supreme Court can add a year or more to the date of a final resolution.[1] If the Supreme Court accepts review, add yet another year to two years before the case is resolved.

Settling a case through mediation resolves domestic disputes months, and often years, earlier than disputes resolved through trial and appeal.  Years in which you could be enjoying life (and your children) are instead spent agonizing over the dispute.  Life is short; the value of finality–which allows you to move forward–cannot be overstated.

The final reason to mediate is the cost savings from settling a case without trial (or appeal).  While mediation requires paying a mediator’s hourly rate–often a rate slightly lower than that of an attorney– that expense is typically divided between the parties.  Further, cases that settle in mediation eliminate the costs of a trial and appeal.

I tell my clients to budget $3,500.00 (at least) for each day of trial, with significant additional costs for trial preparation such as depositions.  The budgets for motions for reconsideration and appeals are also significant.  No one should approach a family court trial on vital issues (child custody; alimony; property division) with a budget under $10,000.00.  In contrast, a day of a certified family court mediator’s time can often be had for $1,400.00, with that cost divided between the parties.  I have often recommended my clients attempt two (or more) days of mediation if progress is being made towards resolving the dispute.  Such mediation still remains less expensive than a multi-week trial.

The uncertainly, inconclusiveness, and expense of trial should make conflict resolution by trial a last resort, not a first choice.  While having an attorney who is afraid to take a case to trial is a serious disadvantage, having an attorney who is too eager to take a case to trial is also counterproductive.

[1]As of October 11, 2010, the Supreme Court is still considering a review request from the April 3, 2008 Court of Appeals decision in State v. Page, 378 S.C. 476, 663 S.E.2d 357 (Ct. App. 2008)

5 thoughts on Why mediate?

  1. Natalie Bluestein says:

    Greg, I agree that everything you tell the parties is correct, and it helps the mediation get started on a positive note. However, MANY parties are actively opposed to being in the same room with the estranged spouse for any amount of time; therefore, I have found it more effective (although less efficient) to go over everything separately with each party. I also include something very similar to your spiel in the paperwork I send to the parties and their attorneys when the mediation is scheduled, which gives them an idea of how the process works and what’s involved before they arrive for mediation. It’s an alternative approach to yours, but the main thing is that the parties understand the process, feel comfortable at the mediation, and are confident that it can work for them.

    1. Natalie:

      I acknowledge many parties in mediation are opposed to being in the same room with the other but I question how often that’s due to one or both attorneys encouraging such petulance. I’ve yet to have a client who is unwilling to be in the same room as the opposing party because I expect my clients to get over their hurt feelings and Grow Up.

      Especially when children are involved, there’s rarely a better place than the mediation for the parties to begin relearning how to communicate civilly and cooperatively with the other.

      Short of abusive situations, parties in mediation should be encouraged to meet together at the beginning of the mediation. While, as a mediator, I don’t directly ask the parties to do so at the beginning of the mediation (because they neither know me nor have developed any trust of me when mediation begins) I do suggest to their attorneys that they encourage this.

  2. Greg:

    Great article.

    In my mediation practice, I used to start with the parties together, but found that sometimes having them together even for a short period of time at the beginning of the day can affect the parties for the entire day. Now I start with each party in a separate room and it seems to be more effective in helping the parties to achieve a settlement. If it looks as though it might be helpful, I will occasionally get them together later in the day to resolve details of visitation, or personal property distribution, but only after we’ve resolved the major issues.

    Like Natalie, I also send out an explanation statement along with my letter of engagement and Mediation Agreement, but I also go over points similar to what you outline in your article at the beginning of mediation, and remind the parties of those benefits often during the day.

  3. California observer says:

    I live in one of the first counties in the country to actively encourage mediation, and I did it during my own divorce seven years ago….a great move, way better than litigating, for all the reasons you said.

    And one more: incentive to work together. In mediation you’re encouraged to find common ground, avoid name-calling and wild accusations, and resolve issues fairly and collaboratively, all very good skills to practice if you plan to co-parent children. Divorce is hard enough without using a system designed to pit you against one another; mediation encourages good behavior, and a good mediator is as much coach as referee.

    1. You are absolutely correct that mediation can be an excellent way for estranged parents and spouses to learn communication skills. Unfortunately, where I practice in coastal South Carolina the tendency is to keep the parties separate for most, if not all, of the mediation. My personal preference is to keep the parties together as much as possible (except when one party wishes to discuss ideas or proposals in confidence) but most mediators and attorneys believe it best to keep the parties separated to keep the emotions from running too hot.

      While that mediation style may be more efficient, and possibly more effective in the short term, my belief is that mediated agreements reached through joint sessions tend to be more stable than agreements reached through “shuttle mediation.” A mediation in which both parties are required to work together and listen to each other to reach common ground is useful in rebuilding the trust that the parties used to have when their relationship was working. The few studies I have read document the superiority of joint sessions in leading to stable resolutions.

      However often folks (both the parties and their attorneys) come to mediation because they are getting weary of the conflict and they want a resolution now. If the resolution blows up a year or two later, that will be some other attorney’s problem. In the trade off between immediate resolution versus long-term stability everyone focuses on resolution. If the mediator helps the parties reach a resolution the attorneys view the mediator as a success. If two years later the resolution becomes unstable because the parties never learned to communicate or trust the other, no one blames the mediator.

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