Mediation is the use of a neutral third person to assist two or more parties to reach agreements on issues which may be or could become disputes. Typically, in the area of family law the agreements focus on giving or changing structure to relationships. People intending to marry or to live together may look to plan for their future by defining each person's rights and responsibilities. Those moving apart wish to divide property and debts, provide support for the other or their children, and create guidelines for parenting.
During the meetings typically lasting from one to two hours, the mediator, usually an attorney, acts as an advisor rather than a representative of the parties. It is the mediator's responsibility: first, to provide and enforce rules for the conduct of the mediation; next, to educate the parties on applicable laws and regulations; to facilitate equitable solutions and compromises; and to draft formal agreements. Attorneys may be consulted during the process by either of the parties between sessions or at the conclusion to review the written agreement.
Mediation offers several distinct advantages. First, it often is the most relaxed and least expensive approach to settlement. Often the time required to reach a settlement is greatly reduced and practical concerns such as scheduling are more easily accomplished. Next, the parties exercise the greatest degree of control over the process and its outcome through mediation. For this reason, however, mediation works optimally when the parties are prepared to be active participants.
What makes collaborative law unique is that from the first meeting the parties and their collaborative counsel sign an agreement not go to court. Once the option to litigate is removed, threats give way to cooperative and creative solutions. Additionally, collaborative law emphasizes an interdisciplinary approach; the use of other professionals as specialists is valued and encouraged.
During my first meeting with my clients I explore the overview of their situation. Are they good candidates for the collaborative model? What are their particular strengths or weaknesses? Will they be able to participate in a meaningful manner without getting stuck in excessive anger? What other professionals will be needed to properly handle their issues and concerns?
Once the decision to proceed collaboratively is made, I'll contact my client's spouse and invite him or her to participate. If that person has already retained counsel, I'll call to discuss working collaboratively. If that is agreed to, at our first four-way meeting we'll explain the rules of the process, sign an agreement not to go to court, and discuss if other professionals should be included in the process. If there are perhaps custody issues, a therapist may be recommended who will help the couple work through their emotional issues and assist in communication. Should someone lack financial knowledge, a financial advisor may be recommended. Finally, the agenda for the next meeting is agreed upon.
Between meetings, to move the process forward, the clients meet with their counselors and any other professionals who are to be included. When the issues are sufficiently agreed upon, an agreement is drafted and approved by the clients and their counsel.
Collaborative law offers the best setting for handling substantial custody issues, as the multidisciplinary team is able to respond quickly and in depth to resolve aggravated child-related conflicts.
Review and Advisement
There are times when clients do not need an attorney to conduct an entire matter and may need advise on a single issue or perhaps a few issues.
Mediation: They may require assistance in understanding their rights during negotiations conducted by another mediator. They may wish to review the agreement reached or terms of a settlement. The client may want to discuss the process of the mediation and whether there is a good fit between themselves, their spouse and/or the mediator. It may be that a client wants additional options for settlement than those that are being discussed.
If any of the terms, issues, process or settlement need clarification and further discussion, a consultation is inexpensive and may prevent mistakes or poor decisions from being made. Generally, if a written document is to be reviewed, such as a marital settlement agreement or pre-marital agreement it is recommended that a copy of the document be sent in advance of your meeting so that it can be properly reviewed. After a consultation, if requested, a letter can be prepared and sent to the mediator that outlines concerns raised in review.
Negotiations With Their Spouse: Perhaps, a person may be in agreement with their spouse on most issues and may only need to discuss a single aspect of their settlement with an attorney. Or a client may be represented by an attorney in negotiation or trial and may need a second opinion.
Consultation is always possible prior to hearings or before signing any stipulation or agreement. The great majority of rights may be waived by an adult in an agreement or a court proceeding. However, a knowing waiver, that is, one with knowledge of the options and consequences is always advised.
Litigation can be costly and psychologically harmful to the families involved. The process of going to court can force partners who've lived together and shared their lives to become adversaries. Court battles are expensive, and the participants often squander their precious resources at a time when circumstances clearly indicate a need to conserve.
Yet, there are times when formal court intervention is necessary due to the participants and/or the issuers involved. First, there are some parties who cannot or will not voluntarily participate in the process of getting separated or divorced. The familiar, "I'm not doin' it until the judge makes me!" Next, there are the "unreasonable" spouses who will take unrealistic positions. Often they may have engaged uninformed counsel who foster exaggerated expectations. Creditor difficulties, particularly tax agencies present another situation which may require careful court scrutiny Custody arrangements may not be subject to easy resolution and may necessitate court supervision.
When it is advisable to use a more formal approach, my representation will be active, direct and effective. I will work actively and positively with opposing counsel to reach an out of court settlement. Whenever possible, my goal will be to contain costs and to reduce the adversarial experience of settlement.