I am often asked if there are ways to resolve the disputes in a divorce (particularly those relating to the children) without resorting to ugly and expensive litigation but also without simply giving in on every issue.
You have heard of labor mediation and Henry Kissinger's shuttle diplomacy but probably never thought those mediation principles applicable to a family dispute. Our legislators and courts are just beginning to recognize their value in resolving the difficulties of "regular folk".
Those better known forms of mediation use a technique known as caucusing (meeting with the parties or their representatives one side at a time) more frequently than family mediators do but the process of identifying the issues, gathering information, developing options and reaching resolution is essentially the same.
In family mediation, the mediator is a facilitator who helps the parties through that process with a greater emphasis on needs and concerns than on "rights". But you (think) you know what you have coming to you - why should you want to hear about "needs" and "concerns"?
People tend to hear that as "his or her needs - not mine"! But it is the needs and concerns of both sides (and those of the children) - not just those of (s)he who whines the loudest!.
Equally as important, lawyers and judges will tell you that any settlement is better than a court order! One of the most significant benefits of mediation is that the parties make their own agreements rather than have one imposed upon them. The mediator has no power to make decisions for the participants - they control their own destiny.
This is not arbitration either - arbitration can be outside the court system or private but it involves presenting a case to the neutral panelists who sit in place of a judge and jury and make a decision for you - again, out of your control.
Disputants believe that having their "day in court" means the judge will hear them and (finally somebody) will sympathize. After all, that ^&$(*% has made your life miserable for years!
The reality is that the court often does not have the time (or sometimes the interest) to hear it. The judge is bound to follow the law, not necessarily your individual concerns. More often than not the lawyers are going to be urged into the hallway to work out a settlement - with varying degrees of input from the clients and the court.
Cases that mediate tend to have longer lived settlements than those imposed upon the participants. The resulting reduced hostilities benefit everyone involved - especially the children.
When looking for a mediator you want to be sure that your mediator allows and encourages your reviewing your progress with your attorney. Make sure your attorney supports and respects the mediation process as well. Remember that your mediator may be an attorney but while serving as a mediator he or she is not practicing law. (Some attorney-mediators help place your negotiations in the context of what a court might do in a given situation but it is improper and inappropriate for an attorney to give legal advice in the mediation - attorneys are ethically permitted to represent only one side in a case.)
Pennsylvania recently passed a law permitting local courts to offer "mandatory mediation orientation" to divorcing couples as an alternative to hostile and costly litigation. Philadelphia, Allegheny, and York Counties (to name a few) have been developing programs using mediation in custody disputes in which it is hoped that the motivation to co-parent successfully in the future will encourage cooperation with the mediation process.
So if it can work for the big players in business and the world, why not for you? If it doesn't work the option of litigation remains open.
The counsel provided herein is intended to be generally educational and not strictly legal advice. All legal topics are fact-sensitive and minor differences can change the ultimate outcome. Do not rely solely on the information on this site for legal advice.
© copyright, 1997, Susan V. Edwards, Esquire