COMMENTARY: Family law disputes: Don't litigate, mediate!

By Marie E. Matyjaszek

Ever have one of those days where you wish there was a sane, unbiased person to sort out your problems and make it all work? If you are going through a family law matter, a mediator may be able to do just that, and probably at less cost than your attorney battling it out in court.

Mediation is a very common tool used in family law disputes, and it's used at various stages of the game as well. Some couples will hire a mediator to sort everything out before they even file the divorce action, mostly so they are not under the time constraints of the court system with its looming deadlines and scary case scheduling orders. Others resort to mediation if they can't agree on everything despite their best negotiation efforts, and some judges mandate the use of mediation prior to the case's set trial date. I think that parties are more likely to go into mediation with an open mind if they feel they are not forced into it, and rather choose to go down that path on their own.

Resolving a case through mediation requires a few things--clients that can keep an open mind and are willing to listen to all options presented for settlement, a full and complete understanding of the case, its issues and the parties' assets and debts, and a competent mediator. Most mediators are attorneys that regularly practice the area of the law that they are being hired to mediate, but some are licensed social workers, counselors or hold a degree in a similar field. If you're hiring a mediator to handle a family law matter, you'd want to ensure that the person has a good track record for successful mediation, has all of the necessary software (i.e. child and spousal support guidelines if those are at issue), and is not involved in any way with the case at hand. At times you'd be surprised to learn that your client did a little comparison (or at times, bargain) shopping before hiring you, and may have consulted with the person you'd like to hire as the mediator. If that's the case, I can't imagine that the other side would consent to hire someone who has likely given his or her spouse advice about the divorce, and it presents significant ethical issues for the mediator as well.

If possible, try to resolve as many of the "easy" issues in the divorce prior to mediation so that you are mediating only those contested and sticky problems that linger despite all of the 10 page settlement proposals faxed back and forth between counsel. Sometimes you have to put all of the concerns in a divorce on the table for mediation, from custody, spousal support, the wedding china you never used, and Rufus the overweight canine BFF, but hopefully the parties can resolve some matters beforehand. Each side has to prepare a brief or summary of his or her position, contested issues and important facts and information (especially what the marital estate is comprised of) to give to the mediator for review prior to the meeting.

Mediation can occur with or without attorneys, at a neutral location (advised) or at one of the attorney's offices, Friend of the Court or courthouse. At times the parties get along well enough to sit in the same room and stare at each other without World War Three erupting, and in other cases you had better have two rooms for the mediator to traipse back and forth. With most mediations, the parties will equally split the cost for the mediator, with some charging a flat fee and others billing on an hourly basis for his or her time (those are the ones where the clients tend to talk really fast).

If no agreement can be reached via mediation, then the parties can at least say they tried and feel good that they made the effort. Those cases are likely to go to trial and have the issues litigated in open court. Sometimes mediation leads to partial agreements, which are certainly better than nothing. Obviously any agreements made need to be reduced to writing and signed by both parties, or preserved in some fashion such as recording the agreement. I've had good success with mediation and many cases have had a complete resolution, even when it seems like they are on opposite ends of the spectrum at the start.

Per Michigan Court Rule 3.216(A)(2), domestic relations mediation is not binding, but the parties can agree to the mediator making recommendations if there are outstanding issues when mediation is complete, which is called evaluative mediation.

In my opinion, it's always best to try mediation if the parties are willing and the case appears to be a good fit. It will cost you less than a trial (God willing), and you're likely to get a result you can live with. In addition, if you had a part in crafting the eventual settlement, you're more inclined to abide by it and see it through, as opposed to a judge telling you what you're going to do with your life. After all, the only time you want someone telling you what to do is when it involves beaches and tropical drinks.

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Marie Matyjaszek is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan. Her blogsite is: http://legalbling.blogspot.com/. She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Fri, Aug 17, 2012

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