Sunday, April 26, 2009

Mediation - Should It Be Mandatory?

I overheard a conversation today that there is a push to move all family law cases into some form of alternative dispute resolution. I can think of several reasons against this idea starting with cost and continuing through the idea that we pay judges to do this job.

Meanwhile, I learned of a new family law blog, Massachusetts Divorce Law Monitor, and one post stood out: Mediation

In my last post I mentioned the Family Service Office of the Probate Court. That is the department which is tasked with getting litigants to settle their cases. Most cases do settle, which is a good thing as the system would otherwise be totally overwhelmed. It is also a good thing for the parties, as an agreement in which you have had some say is generally better than one which is imposed on you.

Resolution of a divorce or other family law matter without extensive litigation in the court is possible. Mediation is a voluntary process that invites people to come to agreement through informed negotiation with the assistance of a neutral third party. Mediation gives the parties the opportunity to discuss the issues between them (be it division of property, custody of children, alimony, child support or any number of other family law matters), clear up misunderstandings, determine their underlying interests or concerns, find areas of agreement and, ultimately, to reduce their agreement to a written settlement document. Mediation is particularly useful in the divorce and family law arena, as it provides spouses with control at a time when their lives might otherwise feel out of control.
Right now, I am only aware of one county that requires mediation - Marion.

So, what does everyone think of making mediation mandatory?

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.


mbrown322 said...

I think it should not be mandatory, but its means should be an option that is required by the courts to inform the parties of an alternative, legal option.

Often times, one party does not retain a lawyer. If the courts were forced to give a document to the parties to inform them of an alternate means to resolution, it may save the courts countless hours. I'm not saying that people should be forced to attempt mediation, only that the courts should offer it as an alternative.


Sam Hasler said...

Mediation is always available. What mandatory means is that you will go to mediation instead of court.

Mary Howard said...

I do not like the idea of mediation. Example: Filed to have a visitation modification due to a move. My ex then got a change in venue. We then went in front of a special Judge.??? Not sure what that means yet. I wanted no over nights for X amount of time due to only 6 months of contact with our youngest who is now 3 and 5 months old. When I got to court that is pretty much what happened. Mediation.... My attorney kept comeing to me with new propsals and I felt I had to counter something. Even though what I felt was in the best intrest of my daughter I was pressured into agreeing to something I did not feel was right for her. Also there is the whole time thing as well. I can not speak for everyone but I like to think on things. Weigh them out and do my home work. At this hearing my head was spinning and in the end I was left saying to myself. What did I do? Why did I not stand up for my child and what was right for her? It is like anything else you full heartly believe in you fight. At lest going in front of a Judge you can present the evidence and make your case. Also a Judge's job is to have your childs best intrest. And being an outsider to the situation only helps your child. Because he is not wrapped up in it emotional like both parents.

Sam Hasler said...

Thank you, Ms. Howard. However, I am more than a bit surprised that your attorney did not explain mediation to you. Can you tell us why the attorney did not do so?

Jacqueline B said...

In my humble opinion... mediation should be offered at every single proceeding and as a reminder to all parties that mediation is available. I would like to just comment that my experience has been the direct opposite with 6 complete years in the family court system with my daughters father. They only offered mediation in the beginning and that was it. On our current Q,R, and S petitions (because they go alphabetically in Erie County, NY no one really knows where he is going with this demand for transfer of custody... not the law gaurdian, not my attorney (he is representing himself) and the judge is so board that upon cross examination she chatted with the secretary about the case waiting outside.... so trust me we have wasted countless county dollars on a these petitons that have been pending since May 2008.

Mediation however should not ever be offered in moderate to severe domestic violence cases.

And since I feel this man is continuing to abuse me with this racket of petitions and the family court system. I guess I would humbly agree that it would not have worked for me. This man has been very abusive for the better half of our relationship and he really does not want custody because he has failed to visit her since... June 2008... so frankly this is really a waste of judicial time...