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Divorce Truths - Mediation - An Alternative
Mediation is the relatively new process in the court system. Ask your attorney about mediation, or call me. I am also a certified mediator in the State of Georgia. If your local court system doesn't offer mediation services, there are private mediators you can hire. Mediation is a worthwhile option.
All life is persuasion. Informally, you have been mediating all your life. As a child you persuaded your parents. As an adult, you persuaded your spouse, children and friends. As an employee, you have persuaded your employer or co-workers.
Mediation is a formal meeting where a licensed mediator functions as an impartial neutral. A neutral does not favor either side of the dispute. Their role is to act as the voice of reason. They listen to both sides and guide the parties towards compromises. Mediation is mutual compromise and mutual concessions.
There Are Guidelines
A mediator will read you guidelines to further explain the process and ask that you also read them, and sign them as your pledge to negotiate in good faith. At the end of this chapter, I have included the guidelines I use in mediations.
The parties who participate in the mediation are you and your attorney, the mediator, and your spouse and their attorney. If neither of you have an attorney, it will be just the two parties and the mediator. Each spouse is given the opportunity to present an opening statement of the issues, and what they hope to achieve. If represented, some clients prefer their attorneys to give it. If you chose to give the opening statement, you should be clear and concise about the issues to be resolved. Don't ramble or spend time talking about extraneous information that doesn't bear upon the resolution or inflame your spouse. You will confuse the mediator, increase the costs of the mediation and accomplish nothing. Listen to your spouse when it's their turn to speak. You will learn what they believe are the important issues. If you aren't the spouse who wanted the divorce, you will most likely learn the real reason for the divorce.
Document the Assets and Liabilities
You should bring to the mediation all documents that substantiate or clarify your issues. This includes financial information on income, debts, assets, retirement, and property. Documents eliminate questions and serve as proof. Without adequate proof, the mediation may have to be reset. Prior to the mediation, your attorney will have obtained relevant documents from your spouse, or sent a formal request for them to bring the documents your attorney needs to the mediation. To help the mediator understand the financial position of the parties, both spouses are usually requested to bring a financial affidavit of income and expenses, debts and assets.
The Most Important Document
The documents that substantiates or clarifies the issues in controversy should be brought to the mediation. If you do not have an attorney representing you, think about which documents are important. Don't just bring a single document without the supporting documents that clarify what happened in the relevant transaction. If you suspect any fraudulent transfers or hidden assets, bring any substantiation you can obtain.
Usually, the issues that are not disputed are discussed first with all parties in the room. When the communication breaks down, either by argument or ability to gather facts, it's a good idea if the parties are placed in separate rooms. The mediator will go back and forth and convey offers. This is known as a "caucus". For emotional individuals or parties with extreme animosity or an inability to speak openly before their spouse, it will minimize the discomfort level. You can specify the matters you want the mediator to keep confidential from your spouse.
No Legal Advice
The mediator does not give legal advice.
In fact, all mediators are not attorneys. Their role is to assist parties in arriving at a mutual compromise. Your attorney must give you any legal opinion of any proposed agreement. The agreement may be better or worse than your attorney believes you may receive before the judge. An experienced attorney will know how your judge has ruled on similar issues in other divorces they have handled. There are also considerations of time and expense if your divorce continues to trial. You should discuss with an attorney what you stand to gain or lose if you go to court, the cost to do so, and the probability of being successful.
The goal of mediation is to end the dispute without the uncertainty that comes from having a judge determine the outcome. You may not be completely satisfied with the final agreement but if you believe it is fair and everything is on the table, you should consider accepting it. Ask your attorney their opinion.
When to Mediate
In the life of a dispute, there are times when mediation can be successful and times when it will be a waste of time. Acceptance of the end is important. Obviously, if there is open hostility fueled by continuous court appearances, the level of animosity will be so intense that neither party will concede a single issue. In most successful mediations, parties are asked to try and overcome damaging emotions. Some can and some can't.
When divorces have just been filed, parties are still maintaining a defensive position. In divorces that have been filed for a long period of time and a lot of money has been spent, there is more flexibility as exhaustion sets in and finances become strained.
Keep an Open Mind
The best approach is to keep an open mind. Don't be afraid to ask lots of questions and explore all offers. An all or none approach is not successful in mediation or in a courtroom. While the mediator is not there to favor either side, they will present your position on issues to your spouse as strongly as you and your attorney request. Your spouse may have suggestions that you have not thought about.
The Selection of a Mediator
The main factor for a successful mediation is the skill and experience of the mediator in getting the parties to cooperate. Agreements govern future conduct. The ability to interact with different personalities is crucial. The mediator needs to recognize the barriers that personalities and emotions present and navigate around them. An effective mediator requires strong people skills. They need the basic savvy that only comes from experience. They should match the sophistication of the participants. You want the most qualified help you can find in both your mediator and your attorney.
Unfortunately, I have encountered mediators who have no skills in negotiations. They basically go through the list of assets and debts asking both sides what they want to do until they hit a stalemate. This can be a complete waste of your time.
Non-Attorney or Attorney Mediator
Should your mediator be an attorney? If you ask a non-attorney mediator, they will say absolutely not. If you ask an attorney mediator, they will say absolutely.
I believe mediators should be family law attorneys and yes I am bias. As in all professions, the arena where the individual culls their craft shapes their skills. Request a family law attorney who is also a mediator and you will benefit from their negotiation experience in dealing with parties and other attorneys.
If a mediator does not give legal advice, why should they be an attorney? Because the majority of all legal cases settle prior to trial, and an attorney has spent their legal career negotiating and settling cases. This is exactly what happens in mediation. They have gained experience in hundreds, even thousands of cases in which they have strengthened their negotiation skills. The negotiation power is greater because their knowledge of the issues that are being negotiated is greater. They have firsthand knowledge, especially if they are trial lawyers. They have more training and experience to make sure both sides are treated fairly. They analyze complex concepts and ideas in the context of your facts. All these factors are an asset in mediating your case and working with individuals under the same type of stress you are.
What similar experience has a non-attorney mediator had, either in practice or education to qualify them to mediate something as important to your life as your divorce? Don't let a non-attorney mediator tell you what they think the judge in your case will do. They can have no factual basis for this opinion, as they have never been in a contested trial.
Who Selects the Mediator?
If you arrange for a private mediation usually your attorney may select the mediator after discussion with opposing counsel. If you are using a mediator through a court system, you will arbitrarily be assigned a mediator. Depending on the complexity of your divorce, it might be more beneficial to forego utilizing the court system and pay to hire a private mediator who is more experienced and specialized. If your spouse is not willing to share in the cost of the mediator, have your attorney request that you be allowed to select the mediator if you are paying the entire cost. Sometimes a private, non-sponsored court mediator is a better choice in a complex case, particularly if you consider the cost of continued litigation. Some court programs have mediators who are not attorneys. Always ask for clarification of the mediator's experience. Some court systems allow more flexibility in the choice of mediators.
Sometimes in mediation the parties and attorneys reach a partial agreement even if they can't resolve everything. I always request the mediator prepare a partial written agreement on the areas of agreement at the end of each session. Otherwise bad memory, false recollections, or a change of position may lose the ground you have gained. To go back and renegotiate the same issues later makes either the first or second mediation a waste of time and money.
You may have more than one session with the mediator. Unless things are running smoothly and you are making progress, you should limit the mediation to three hours. Your attorney will evaluate whether another session would be beneficial. Sometimes parties have failed to bring necessary documents that are critical to the resolution of some of the issues. A second scheduled session allows time to obtain them. Sometimes the parties are too mentally exhausted to conclude everything in one session. As an attorney when I review mediated agreements, I have found mediators who had four or five sessions on complex property distribution issues.
Divorce alters lives. Any time you go into a courtroom, you give control to a judge. You are risking an unfavorable outcome. Consider the effects of an adverse ruling. This uncertainty is the reason to mediate. In mediation you can negotiate creative solutions. Judges cannot know all the intricacies of your married life that would enable them to evaluate the permanent effects their decision bears upon your future. Just as every case is unique, in mediation you can agree upon a unique solution. You should never, however, be lulled into a false security that your spouse is working towards the same goal you are. This is a divorce. It may be difficult to determine your spouse's motive but that doesn't mean they don't have one. Consider their history of manipulation.
Mediation Educates You on Your Spouse's Claims
You will learn your spouse's version of the facts during your mediation. You will discover the information (later known as evidence) they will put forth to support their position. It is an opportunity to know what you must disprove. Are their allegations credible? If you didn't know the truth, would you believe your spouse? If you would, perhaps a judge would too. Learn everything you can about their assertions. If your spouse does not think you are a good parent, find out why. Your attorney will have their own strategy at mediation. Some attorneys ask the mediator to honor the confidentiality of the caucus. They believe it is better to have the opposing side underestimate your case, rather than prepare to match it. Your attorney will know how much to reveal and when.
How did your attorney handle the mediation? Were you satisfied with their questions and the manner in which they put forth your concerns? Will you be satisfied with this same type of representation if you have to go to Court? These are hard questions but you need to answer them.
Mediation Before Litigation
Some couples dislike the idea of hiring attorneys in the early stages of their divorce discussions. They think it increases hostility and distrust. They prefer to meet with a mediator to see what issues they can resolve, prior to engaging an attorney later. Some simply do not want to have attorneys dictate terms, or spend thousands of dollars to end up enemies.
With or without an attorney, the procedure is the same. The mediator will motivate both parties to work together as joint problem solvers. Some couples have less tension and are more willing to openly discuss alternatives when attorneys aren't making judgments. The parties focus their attention on the areas of disagreement more in the light of resolution than as adversaries. They prefer to treat each other with respect, rather than resentment. They are more willing to address strong negative emotions and try to control them before they adversely influence their agreements. Mediation is also very effective when parties have children. Children give a strong point of focus. Parties can appreciate the necessary and important roles of both parents. They have more freedom to shape the future of children and parental involvement with less residual hatred.
If your attorney is not present, you reserve the opportunity to have them review your agreement. The purpose is to make sure you are not acting contrary to your legal interests. You should also be absolutely certain that you have all the financial information prior to making a final decision.
Sample Mediation Guidelines
Mediation is creative problem solving. In a divorce, you are selling everything you own to each other or to a third party. It's a life change, but it's also a division of assets and debts.
In mediation you have the opportunity to take the time and create an agreement unique to your situation. The judge may not be able to do this. Here you know the final outcome when you leave.
No one can change what happened in the past. We can only deal with the present and the future. Usually, one or both of you have strong emotions over disagreements that have occurred during your marriage. Today, you will work hard not to let these emotions influence your ability to reach decisions.
You should know a courtroom is not the place to vent your feelings. A courtroom is impersonal. You will not get satisfaction for your emotional demands.
Mediation gives you a little bit of reality orientation. Are your proposals fair? How strong are your spouse's allegations? Strong facts need to be addressed. There may be limits imposed by your unique circumstances, regardless of what you believe your needs to be. The purpose is to have a fair agreement. Everyone knows what is fair. It's just whether their emotions will allow them to acknowledge it, not whether you believe your spouse deserves what's fair.
Both of you will have the opportunity to respond to everything and to bring up what you believe is relevant. It's also important to remember that for the mediation to be successful, both of you need to participate. Your spouse needs to understand your concerns. If you think they aren't getting the message, tell it to them another way.
I will not make any decisions for you. That's your job. I will assist in making sure you both understand the facts and issues, and have the opportunity to voice your concerns. If you want to know why your spouse is so insistent about an issue, we will ask. This is an opportunity for you to learn what they consider are the problems so you can deal with them.
Any agreement reached is voluntary. You only give up your right to go to court if you want to, or if your attorney thinks you would do better with the judge. For mediation to be successful there must be open and honest communication. When you are in the courtroom, the first thing that happens is you swear to tell the truth. And while you are not under oath here, we expect nothing less. Both parties need to give complete disclosure of all relevant matters. If a party withholds important information or gives false information, the agreement may be set aside, and you may be back in court. If you want to, you may stop the mediation at any time.
Information given in mediation is confidential. I will not disclose any information learned from one side to the other side without express permission. I will meet in private with one side. This is to gain information. This is known as a caucus. There is no significance you should give it. Sometimes it might take longer than it should, depending on the extent of the participation of the party. Remember, if you do not want me to reveal information learned to the other party, I will not reveal it. This allows you to speak openly without pressure.
There is an exception. The exception would be if I learned of a crime, imminent threats of bodily injury or abuse, or such other matters as to which the law imposes upon me a duty to report.
We may meet in caucus. This may happen when:
By signing these guidelines, you agree not to call me to testify as a witness to court, or otherwise seek information developed in the course of the mediation. I will not testify voluntarily for either party. I will not provide legal or financial advice. It is not my role to function as an attorney. Again, my singular role is to assist you in reaching a fair agreement. These are some of the rules for mediation.
Your signature on these guidelines is your pledge to work in good faith towards a resolution of your issues. I may explore painful realities, but they will not be as painful here as they would be in an open court. Again, this is not to embarrass anyone, but to get it on the table, deal with it and, hopefully, resolve it.
Once you reach an agreement, it will be prepared, either today or over the next few days depending on the length and content of the agreement. You will each sign it and be bound by it. If there are no attorneys present, you both have an additional time of ten days to have an attorney review it before it is binding. If there are attorneys present, you will be bound by your signature today. There are other provisions which your attorneys will add once they formalize the main agreement, but the basic terms are those defined here today.
Also, if you don't have an attorney, you will have to obtain the services of an attorney to complete the legal process, unless you do it yourself. That is not part of the mediation.
Also, and this is the hardest part for some people, you are going to have to leave past fault and blame behind. Mediation looks to your futures. There is a tendency to think about the past, sometimes obsessively. This is an opportunity to create an agreement that minimizes future contact and controversy, and avoid going back to Court.
Your agreement here today to mediate evidences a willingness to accept something less than a total award of everything you are seeking. The purpose of mediation is to bring movement in the direction of a solution. Regardless of what you believe, you have shared goals and shared problems.
Don't interrupt the other side when they are talking. This is just being courteous. You will have your turn to correct anything they have said. Just because I listen or repeat something your spouse has said, does not mean I believe it or I don't believe it. I am assisting in the transfer of communication. Obviously, my purpose is to assure that everyone has enough information and understanding to make an informed decision.
My purpose is never to intimidate you or put pressure on you. If you are not comfortable with something, tell me. You don't want to Monday morning quarterback your mediation agreement. You don't want to wake up tomorrow and blame yourself or everyone else in this room for its terms.
You control the end result. You can't do that in the courtroom. Attorneys are paid to win. They are aggressive by nature. They seek to maximize a verdict for their client. Your attorneys may never be able to successfully neutralize the lasting effects of the aggressiveness of a bitter trial. They are paid not to make concessions. Consider the lasting effects of the fallout from your spouse if your attorney wins everything you seek in Court.
Mediation is cooperation. It establishes a common ground. It tries to create gains for both of you. You are both moving forward to a new life. Mediation is an understanding that your current attitude and behavior may have to make way for change. You are asked to be less demanding and more understanding. The very nature of conflict is destructive. You are looking for acceptable ways out of your conflict to a meaningful resolution that both parties can live with.
My Personal Preference is for Mediation
I have been going to Court since l984. It always takes more time than it should. Divorces can drag on for years - literally. This can result in large sums being spent in attorney fees, and you don't always get what you want. Clients become upset over the length and cost of litigation. I have had contested custody cases that lasted so long the children actually grew up before the case ended.
I believe in mediation. I enjoy mediating. It is an excellent opportunity to lessen the stress, the cost, and the disruption to your life. It is important for the parties to emotionally "buy into" the process. This can depend in large part on the ability of the mediator. The parties need to be involved in seeking their own resolutions. Once they have this type of commitment, the process takes on a more essential role towards resolution.
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