Divorce Mediation and Alternative Dispute Resolution (ADR)

What is mediation/Alternative Dispute Resolution (ADR)?

Mediation/ADR is an opportunity to settle a case without going to trial. It is a flexible dispute resolution process in an attempt to come to a mutual agreement without involving the court.

How does mediation/ADR work?

Parties, though their attorneys, can schedule mediation at any time during their family law case. Because mediation is not mandatory, both parties must agree to attend the mediation for it to move forward. However, the court will often order parties to go to mediation before going to trial. The parties and their attorneys will schedule a time to meet together with a mediator. Sometimes all parties meet in the same room for mediation. In high conflict situations, the parties can stay in two separate rooms and the mediator will go back and forth between the two rooms. Your attorney will remain by your side throughout the mediation serving as your advocate and assuring you receive a fair settlement. Mediation will typically last as long as it takes to resolve the matter. This means that mediation can last for only two hours or for several days, depending on how willing the parties are to negotiate and how many issues there are.  If a court appoints a mediator pro tempore, you will not have to pay for their mediation services and mediation is typically scheduled for 2-3 hours. However, it is often beneficial to choose your own private mediator that caters more specifically to the individual needs of your case. If you are using a private mediator, the mediator’s fee will be split between the two parties and is typically due at the time of mediation. The private mediator’s fee varies significantly by mediator.

What is a mediator?

A mediator is a specialist trained in negotiation and communication. Mediators are effective in resolving conflicts and facilitating conversation about tough and emotional issues. They help clarify the parties’ positions and identify the specific issues.  Mediators are also well versed in family law conflicts and can anticipate issues that come up in the future that you may not see. Because family law matters are often high stress, high emotion, and high conflict situations, a mediator can be an invaluable tool along the pathway of resolution.

How does mediation/ADR help? What are the benefits?

Often, courts are poorly equipped to handle disagreements that parents are in the best position to resolve. However, due to the high conflict nature of family law issues, those disagreements are often left to the court to decide. Those court decisions can be very unpredictable. Mediation is beneficial because it allows the parties to be highly involved in the final resolution. Parties will have much more control over the situation and consequently, the final decision is much more likely to be followed. This can lead to fewer legal issues in the future.

It mediation/ADR worth it?

Yes, if it is done right. Occasionally parties will not resolve all of their issues during mediation, and consequently feel that it was a waste of time. This is not the case. Mediation is an opportunity to narrow the number of issues going before the court. If you can resolve some issues on your own and give the Judge less to focus on, that Judge can make better and more informed decisions on those remaining issues.

Mediation can also use up a larger portion of your retainer. However, it will end up saving you money, even if you are also paying for the mediator. This is because your legal work is all concentrated into one day, as opposed to months of back and forth phone calls, emails, and trial preparation.

Is mediation/ADR required?

Mediation is not mandatory, although it is typically encouraged and highly beneficial. A court will often order disagreeing parties to go to mediation, in which case it becomes mandatory.

Is Resolution Management Conference (RMC) the same as mediation?

RMC is very different from mediation. An RMC is an opportunity to discuss issues, but it is only 15 to 30 minutes of discussion in front of the Court, as opposed to a long private conference in an office setting like in mediation. Additionally, issues must already be narrowed and presented to the court in a Resolution Statement before the RMC begins. It is easier to think of an RMC like a pre-trial conference before the Judge.

How can we help?

Most family law cases should be settled in mediation, but it is essential to have an attorney guide you. Our attorneys have seen far too many unfair, impracticable, and unmanageable resolutions in mediation because of poor representation. This creates more legal problems in the future, which drives up legal fees. It is so much harder to undo something than to do it right the first time. We believe that mediation can be highly successful and effective if our clients are informed and an attorney is present to ensure that the resolution is reasonable and fair. The attorneys at Gillespie, Shields, Durrant, & Goldfarb are creative problem solvers and fierce advocates of fairness. We are committed to ensuring that your mediation establishes fair and sustainable results.

Other questions? Contact our office today!