Many tools can be utilized to resolve family law matters; however, over my years of practice, I find that prospective clients have notable misunderstandings about mediation and how it works. When advising my clients on how to move forward in resolving the sensitive topics that come along with a family dispute or divorce – child custody, child support, spousal support, property distribution – I find myself having to dispel a number of misunderstandings in order to expose the true benefits that mediation has to offer.
1. The Mediator has Decision Making Authority
The term “Mediator” is defined as a person who attempts to help opposing sides in a conflict come to an agreement. True to its definition, the Mediator does not have any decision-making authority; rather the final decisions and agreement are up to the parties themselves. The Mediator serves as an in-between to push and pull both sides beyond their comfort zones. At many points during the mediation, the Mediator will attempt to gain further insights about the situation in order to provide context to a party’s position or desire when presenting counter proposals; however, the Mediator is not taking sides or making any final decisions in any capacity. The ultimate goal of the Mediator is a resolution to the conflict or disagreement, not to make the decisions or make a judgment about how things are going to be for the parties or their families. With the help of a Mediator, opposing positions in a mediation are brought closer together in the hopes of a resolution that both parties can live with.
2. You Do Not Need an Attorney in a Family Law Mediation
When going through a family law dispute, each and every person should have knowledge about their legal rights and claims to make wise decisions in any negotiation or amicable resolution. As such, having an Attorney to assist each party to a family law dispute is crucial. Remember, the important difference of roles in a mediation: the Mediator is there to help opposing sides come to a resolution; in contrast, the Attorney is there to advise and ensure that a party knows their crucial legal rights, strategies and potential outcomes should this family law dispute resolve amicably or go to trial.
Bringing up the topic of hiring an Attorney may cause some anxiety about financial implications; however, also think about the financial and real-world implications that could result without having this crucial legal knowledge and advocate by your side:
- Will you leave money on the table you did not know about or did not realize you were entitled to?
- Will unanswered questions that you had in a mediation leave you wondering about what else should have been discussed?
- Will the lack of legal knowledge by either or both parties stunt the ability to find common ground?
- In the absence of a legal advocate, will one party be left vulnerable to the manipulation and possibly emotional and mental abuse that was exhibited during the marriage?
You may lose so much more should you not have an Attorney by your side during a mediation.
3. All Mediations are the Same
Simply put, there are various forms of mediations. There are mediations in which parties represent themselves, and mediations in which legal representation is highly encouraged. There is also a big difference between a Court-Ordered Mediation in a child custody matter versus a Private Voluntary Mediation. This will necessarily have implications on the training and experience of the related mediator as well. Before moving forward with any mediation, ensure that you become familiar with the type of mediation and what topics are going to be covered before you show up to the mediation itself.
4. Mediation Does Not Work with Narcissists or in Domestic Violence Matters
In a mediation, the parties are ultimately in control of the final outcome. True, this includes the narcissist or domestic violence abuser. But of greater importance, the mistreated spouse that is attempting to find a voice finally has a mechanism to speak their mind. Mediation provides a platform of empowerment. In unbalanced relationship dichotomies, the mediation process provides an equal ground upon which the mistreated spouse is able to not only speak their truth but to, more importantly, pursue a resolution that he or she truly desires. With the guidance of a family law Attorney, the mistreated spouse can effectively use this equal ground in order to safely and effectively pursue the relief they desire. With the guidance of an Attorney on behalf of each party and a skilled mediator, the stories, concerns, and desires of both parties become the priority without the fog of inadmissible evidence and mud-slinging often observed in the courtroom.
5. Mediation is a Waste of Time
I hear all the time, “our case will not resolve in mediation.” Despite this common response from my clients, I stress that even if mediation fails, the process of going through mediation helps prepare the case for litigation. Prior to mediation, there will be documents exchanged and information obtained. Due to the amicable nature of mediation, such information and documentation is generally exchanged voluntarily. Without such a voluntary production of information and documentation, the only other way to force someone to turn said items over is through the litigation process. And there is nothing easy, timely or cheap about the process of forcing someone to turn over documents in the litigation process. On the flipside, a skilled family law Attorney as your advocate in a mediation can also help protect and use wisely any information that you believe is sensitive in the family law matter. During the mediation itself, we hone in on important details in the case. More importantly though, we learn the position of both sides and any sticking points that may need to be addressed by a Judge should we undergo the litigation process.
Mediation is a proven technique that can address the unique character or circumstance of your family law matter while giving you more control over the outcomes than you would experience in a courtroom. More importantly though, mediation can result in a resolution upon which you can build the next chapter of your life.
If you are undergoing a family law dispute and would like to learn more about Mediation, our Modern Legal Team is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
