Very few divorce cases actually go to trial. Trial imposes great emotional cost (airing dirty laundry in public; giving your life decisions to someone else) as well as financial cost (attorney preparation and trial presentation, subpoena costs, expert witness fees, etc.). Most cases are settled and of those, most settlements occur as a result of mediation, a method of alternative dispute resolution. Mediation in divorce cases is provided for under the court rules and is a cost-effective way to resolve a case. However, each side must be prepared to compromise.
Generally, mediators are selected by agreement of the parties upon the advice of their attorneys. This usually occurs at the pre-trial conference. Those who serve as mediators are themselves experienced family law attorneys, who have earned the respect of their peers for their ability to fairly settle disputed cases. Mediators are neutral and have no authority to force any terms upon the parties; i.e., mediation is not binding unless the parties enter into a settlement agreement in writing or by taped record. Mediators bring their knowledge of the law and of the assigned judge to the table and assist both sides in finding the common ground that promotes settlement of the disputed issues. They have no vested interest in the outcome of the case other than achieving a settlement.
Preparation of the case through the various discovery methods, including use of interrogatories (written questions about income, assets and liabilities), requests to admit, subpoenaed information and depositions prior to mediation, is important. By doing your “homework” and having all relevant information at hand, a party will be armed with the facts necessary to make an informed decision regarding settlement of the case.
Once a date for mediation has been established, each party presents their summary of the case to the mediator ahead of time so that the mediator knows in advance what the issues are. The mediation sessions (there may be more than one) are informal and are not adversarial like a trial. Anything told by a party to a mediator is confidential and cannot be disclosed at a later trial if the mediation is not successful. Some mediators “shuttle” between the parties, who are in separate rooms, until a settlement is reached or a stalemate occurs. Others conduct sessions with everyone seated together.
No matter how conducted, the goal is always the same: to settle the case and let everyone get on with their lives. If a settlement is reached and put in writing and signed by the parties or tape recorded while under oath, the terms are final and binding. The final matter is to prepare a consent judgment of divorce, which contains the entire agreement reached and which will be enforced by the court.
Latest posts by David Caplan (see all)
- Divorce Mediation - December 5, 2011
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