Mediation as an Alternative Option

Basically, all litigants have TWO choices: tell the court what your agreement is OR the court tells you what your agreement should have been.

Most parties facing the reality of separation and divorce are legitimately focused upon the outcome. However, in my experiences, the first debate is not substantive law and what I may or may not lose/acquire in the process of divorce, but the first choice is what process and procedure best suits the parties’ needs and expectations. In my viewpoint, the first choice parties must discuss is whether or not they truly want a court imposed solution, or whether or not there is a more sensible approach to resolving the dilemmas which exist. I have described the five basic choices that exist for all litigants, to-wit: 1) a kitchen table resolution; 2) mediation; 3) arbitration or 4) the hybrid process known as mediation/arbitration; 4) a collaborative approach and/or 5) resort to the court. Presumably, a person who is zealously advocating that only the court can render justice must also consider a sixth alternative, i.e., appeal the outcome.

Kitchen table: I use the phrase: “kitchen table” to describe the dissolution of a short term marriage, with no children, where the parties can basically discuss and divide their belongings in an informal session i.e. the “do it yourself divorce”. Even “simple” situations may benefit from the involvement of an expert in domestic law. For example: the transfer of titles, the separation of bank accounts, and the allocation of credit cards are far more complicated than one may first envision. Simply transferring the title to a vehicle may have ramifications that a lay person does not fully appreciate, especially when the car is not paid in full, and the rights of a financial institution are involved. Even short term marriages, with no children, may require advice and counsel on how to best allocate the accounts and resources, even when the parties have a clear understanding of what / how they want to divide the properties. Having a trained expert examine the agreement for the sole sake of suggesting more detailed legalese is worth investigation. Experience shows that what an experienced family law lawyer may add, to more fully describe the agreement, may save significant problems in the future, when the “kitchen table” discussion neglects to fully comment upon issues that most people simply neglect to discuss, because they did not foresee the possibility of that problem arising.

Mediation: The El Paso County Court system has been a strong advocate of mediation. Indeed, most cases are not allowed to proceed to trial unless and until both parties have attempted to mediate their differences. Basically, there are two choices involving mediation, to-wit: 1) all issues may be presented through the Office of Dispute Resolution which is an unaffiliated branch of the El Paso County District Court, or 2) the parties may elect to retain private mediators. Mediation with the Office of Dispute Resolution is generally limited in time and scope; retaining the services of an experienced family law private mediator allows more flexibility in scheduling. Both sides should be able to acknowledge that their agreement is not the result of a quick solution, and that both parties were given the opportunity to reflect upon the terms of the agreement, and both parties have been given the opportunity to confer with others. Without these safeguards, a “quick solution” may turn into a lengthy controversy, if one party feels that there were forced into agreeing.

The question I would ask of everyone is: What do you have to lose by attempting to mediate your family law issues? Mediation is a confidential protocol. What was discussed in mediation cannot be used in court. In my viewpoint, every agreement has value. Even if your case should resort to a court proceeding, reaching agreement on those items which are not truly contested, allows the parties to concentrate and present the “real” issues in a more succinct manner. I can assure everyone, your judge/court will be very happy to know that progress has been made in resolving some issues. This includes not includes issues of a substantive nature, but also procedural issues, such as agreeing that real estate values can be stipulated to without the necessity of calling witnesses to testify as to their opinions. Let me assure you: The court will be very happy to know that some issues are resolved. Making the court “happy” is a good thing; not a bad thing. Fighting about the incidental issues is likely to take far more time than one expects, and distracts from what is the real issue. Agreeing on that which is agreeable and agreeing to disagree on that which is the center of controversy does not offend a court, in fact, agreeing what is in controversy can be a major breakthrough.

A party has absolutely nothing to lose by reaching a fair and equitable agreement.

Arbitration: In the past decade, arbitration of legal issues have become more and more commonplace. Indeed, many commercial contracts contain arbitration clauses, wherein in the event of any dispute the matter is to be resolved through arbitration, rather than resort to the courts. In the family law context, there is also a process known as mediation-arbitration, wherein the same person who has assisted the parties in attempting to mediate a resolution is directed and authorized to issue an arbiter’s award (final decision).

Med-Arb: There has been significant legal debate as to the benefits and detriments of arbitration. I consistently hear two primary objections to the concept of arbitration, to-wit: 1) a judge is free; and 2) an arbiter’s award is essentially non-reviewable/non-appealable. On the other hand, there is many benefits to the parties and their counsel choosing an experienced family law practitioner to be the arbiter, even if the arbiter will charge an hourly rate for his or her services. In the vast majority of cases, the decision of a judge will not be overturned on appeal, and parties who are focused upon appellate rights in divorce law are surprised to learn how costly an appeal may be.

Collaborative Divorce: Collaborative representation has been gaining popularity as a model for resolving domestic cases throughout the United States and internationally since approximately 1990. In collaborative law, a specially trained attorney represents each spouse. The role of the attorneys is to assist the spouses in reaching an agreement that meets the legitimate needs of both spouses to the maximum degree possible. The attorneys’ efforts are geared toward advising, problem solving, and guiding the parties through the process. Both spouses and the attorneys enter into a binding contract that disqualifies both attorneys if either party elects to terminate the process and go to court. There is a commitment to resolve any and all disputed issues in good faith, with a commitment to full and complete transparent disclosures of all assets, from the beginning of the process to the end of the process. In the El Paso County area, there are a number of therapists, lawyers, financial experts and others who are specially trained in a Collaborative approach and who are available to assist both parties achieve a fair agreement.

Court and the Cost of Litigation: The cost of litigating has become more and more expensive. There are a number of reasons for the escalation of litigation expenses, including: the battle of experts; the delays associated with Court proceedings; and the legal costs incurred in preparing for formal litigation (including the preparation of subpoenas, exhibits, spreadsheets, child support calculations, and preparation of witnesses for examination and cross examination). The Judicial branch of the government is dependent upon tax revenues to maintain its structure. All branches of the government have been effected by the lack of revenue that is now available, what this basically means is: the court has less resources at a time in which more is being expected/demanded. Judges do not have the resources necessary to analyze every case to its fullest extent, yet litigants somehow believe that only a Judge can resolve the differences between divorcing party’s. There are two basic choices: 1) tell the Judge what agreement you and your spouse have agreed upon OR 2) the judge tells you what your agreement should have been. It is more likely than not, that one or both parties will “feel” that the court imposed agreement is not fair, and when one thinks about it the question is: if the parties agree that the Judge was perfectly fair and reasonable, why could they not have privately agreed to a similar result, why did they “have to hear it from a judge?”

People often ask: “Does mediation really work?” In a word…yes. Research has confirmed that couples who have reached a mediated resolution are more likely to be satisfied with the process and the results, and they are less likely to need to seek post decree court intervention.

APPEAL: When all else fails there does exist one other method of resolution, Appeal.