Don't litigate. Mediate!

By Marie E. Matyjaszek

Ever have one of those days when you wish there was a sane, unbiased person to sort out your problems and make it all work? If you are going through a family law matter, a mediator may be able to do just that, and probably at less cost than your attorney battling it out in court.

Mediation is a very common tool used in family law disputes, and it's used at various stages of the game, as well. Some couples will hire a mediator to sort everything out before they even file the divorce action, mostly so they are not under the time constraints of the court system with its looming deadlines and scary case scheduling orders.

Others resort to mediation if they can't agree on everything despite their best negotiation efforts, and some judges mandate the use of mediation prior to the case's set trial date.

Resolving a case through mediation requires a few things: clients who can keep an open mind and are willing to listen to all options presented for settlement; a full and complete understanding of the case, its issues and the parties' assets and debts; and a competent mediator.

Most mediators are attorneys who regularly practice the area of the law they are being hired to mediate. But some are licensed social workers, counselors or those who hold a degree in a similar field. If you're hiring a mediator to handle a family law matter, you want to ensure that the person has a good track record for successful mediation, has all the necessary software such as child and spousal support guidelines if those are at issue, and is not involved in any way with the case at hand.

If possible, try to resolve as many of the "easy" issues in the divorce prior to mediation so that you are mediating only those contested and sticky problems that linger despite all of the 10-page settlement proposals faxed back and forth between counsel.

Sometimes you have to put all of the concerns in a divorce on the table for mediation. But hopefully the parties can resolve some matters beforehand. Each side has to prepare a brief or summary of his or her position, contested issues and important facts and information (especially what the marital estate is comprised of) to give to the mediator for review prior to the meeting.

Mediation can occur with or without attorneys, at a neutral location (advised) or at one of the attorney's offices, Friend of the Court or courthouse. With most mediations, the parties will equally split the cost for the mediator, with some charging a flat fee and others billing on an hourly basis for his or her time.

If no agreement can be reached via mediation, the parties can at least say they tried and feel good that they made the effort. Those cases are likely to go to trial and have the issues litigated in open court. Sometimes mediation leads to partial agreements, which are certainly better than nothing. Obviously any agreements made need to be reduced to writing and signed by both parties, or preserved in some fashion such as recording the agreement.

Per Michigan Court Rule 3.216(A)(2), domestic relations mediation is not binding, but the parties can agree to the mediator making recommendations if there are outstanding issues when mediation is complete, which is called evaluative mediation.

In my opinion, it's always best to try mediation if the parties are willing and the case appears to be a good fit.

The author is an associate attorney at the Law Office of Robert Matyjaszek, PLLC, Jackson, Michigan. Her blog site is:

Published: Thu, Aug 2, 2012