What is Mediation - And When Can It Help

With some counties pushing mediation as prerequisite to ever seeing a courtroom, I getting asked more questions about mediation and articles like What is Mediation do a good job of explaining the process. I suggest following the link and reading the whole as well as my excerpts

Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost effective as possible.
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In mediation, the couple, with the help of the mediator, works out agreements on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediators job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.

I do have a long-standing philosophical problem with mediation. Cases exist where no amount of persuasion will lead to a change of positions. In those cases the need exists for a person to say that this or that will be done by the parties. Those people we call judges. Therein also lies the basic difference between mediation and litigation.

I do have a criticism to make - which may describe more the difference between Indiana and Illinois rather than any error by the writer - of this paragraph:

In 2008, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce, you during mediation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.

My criticisms are:

1. I know Indiana has does not have any statistics on the costs of litigation versus mediation but I cannot think that the average in Illinois greatly higher than Indiana - or what I am billing!
2. Do read this paragraph with the assumption that a lawyer can be done away with if you do mediation. Unless the parties prepare the necessary petitions and waivers, there is still the need for a lawyer.
   

The Mediation Channel Blog

Just found The Mediation Channel Blog on March 1 and I am intrigued by its style and its content. Not another dreary, look-alike blog for sure.

Two posts that I notice that might interest my readers were The cost of conflict: what happens when we frame divorce as combat which was cited in Zero sum game show: celebrities decide who’s right or wrong in The Marriage Ref. (And, no, I did not take the time to watch The Marriage Ref last night. I troubled my wife's patience enough watching curling.)

From The cost of conflict: what happens when we frame divorce as combat:

It made me wonder what shlep and Levine would make of a new book on divorce for women by attorney Sherri Donovan: Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce–Alimony, Custody, Child Support, and More.

The pugilistic theme doesn’t end with the title: the book jacket is adorned with a photo of a blood-red boxing glove. Chapters include “Are You Ready to Rumble?”, “Divorce Ain’t for Sissies”, “Sizing Up Your Opponent”, “Conditioning for the Fight of Your Life”, and “Psyching Up for the Fight”.

It should leave us all asking what kind of casualties result when divorce is framed as either prizefight or combat.

Personally, I hate either/or scenarios. They do exist, sometimes they are unavoidable but the majority of either/or situations show either a lack of imagination or intellig

This comes from Zero sum game show:

Now, stepping into the marital fray is comedian Jerry Seinfeld, who will be hosting “The Marriage Ref“, a game/reality TV show in which bickering couples will submit their disputes to nonbinding arbitration before celebrity guests who will “comment, judge and decide who’s right and who’s wrong in real-life disputes between real-life spouses.”

Of course if you’d rather resolve your dispute anonymously, try the web site Sidetaker (“Let The World Decide Who’s At Fault”) and let the hive be the judge.

Useful and well written (like I wish I had thought to quote from the United States Poet Laureate), but may not be for the general public as much as other mediators. Give it a look.

Mediation - Video Explaining Pros and Con

I found this video on Lextube. I think it does a very good job of explaining the good and bad of mediation.

Mediation

Following up a bit on Mediation Notes, I offer you Joe Hewitt's How to Prepare for Mediation defines the difference between a mediator and a judge:

A mediator is a go-between, someone who helps two parties in dispute reach an agreement. A mediator is necessarily neutral, and cannot take sides. The mediator is sometimes referred to as neutral third party.

The mediator is not a judge. He cannot give legal advice. His goal is not to have a winner and a loser, but to have two winners. In a meeting where confidentiality is the rule, he helps the disputants reach an equitable settlement agreement.

As a follow up to my Reasons for Mediation Failure, I offer Four Reasons Why Mediations Don't Work and particularly this paragraph:

3. Frame of Mind - If you are attending mediation and if you know it won't work, then it won't! This is true for both the parties, counsel, advocates and the mediator. The parties in the mediation must go into the mediation knowing that they can come to an agreement and understand that they are not settling or failing by settling their dispute in the mediation. The counsel (or attorneys) must enable their clients to succeed in mediation by preparing them appropriately for the mediation session.

Guardian Ad Litem Fees - Shelby County, Henry County and Howard County

Earlier this case I had a custody case out of Howard County where our side requested a Guardian ad Litem. The procedure in Kokomo consists of appointing local counsel who then contacts the party wanting the GAL and announcing the fee for services. The fees requested were $1,000.00. I think Shelby County's schedule of fees shows a more rational approach than does Howard County.

Shelby County: LR73-FL00 Rule 3.

Guardian Ad Litem Fees

The Shelby County Courts, recognizing it is appropriate to require parents and custodians of children who are involved in litigation and use the services¹ of the Shelby County Guardian Ad Litem to be financially responsible for those services, hereby establishes a standard fee schedule for the services¹ of the Shelby County Guardian Ad Litem in cases other than Child in Need of Services cases.

1) For custody and/or visitation evaluations, each parent/custodian shall pay the sum of $200.00.

2) For cases in which the services of the Guardian Ad Litem is required on an ongoing basis, each parent/custodian shall pay the sum of $75.00 per month.

The Court in which the case is pending retains the discretion to deviate from the schedule in a particular case based upon the circumstances of the parties.

Adopted effective November 18, 1997. Amended and renumbered as Rule 3, September 30, 2005, effective October 11, 2005.

Much less detailed is Henry County's GAL Rule that I wrote about in Henry County Local Rules:  Guardian ad Litem.

Mediation Notes

Outside of Marion County, I am unaware of any counties requiring mediation. Which means mediation is a rarity for the average divorce. I do suggest reading the full articles I link to below if you want to know more about mediation.

First is Indiana Family Law's How not to have a successful family law mediation:

"Parents especially need to be in the right frame of mind when they sit down together in the same room with a mediator. For at least the time before and during the mediation, the parties need to be ready and able to set aside their own anger, hurt and other emotions that will get in the way. They need to have something that helps them focus on the big picture, the long-term goal, what’s really important.

If we attorneys want the mediation to be a mediocre experience, let’s stick with the standard practices. If parties out there reading this want to blow a good opportunity to make real progress, don’t ask your lawyers for more assistance in getting prepared."

And Mediation in a Divorce Case from the Mississippi Family Law Blog has a very good description of how a mediation should run:

Mediators are generally very experienced in the family law and/or conflict field and have also undergone mediation training. Good mediators present their unbiased views of the situation in a very frank but helpful manner – not hesitating to tell a party that they are being unreasonable when necessary. If mediation is successful, the mediator will usually draft a memorandum agreement for the parties to sign – or quick moving attorneys can even produce a complete settlement agreement - before the parties conclude the conference.

Mediation can be useful, but it is only a tool and not a cure-all. In my opinion, mediation will work when the parties have the funds to afford the costs of mediation and both parties can be brought to see reason.

1/1/2010: I wrote again on this topic in Reasons for Mediation Failure.