Tonight’s post on Divorce and Mediation was written by our lead Marietta Divorce Attorney, Jeannine Lowery.
Most Superior Courts in Georgia require domestic cases to go to mediation before the case can go to trial, with some counties requiring mediation even before the first hearing. Court ordered mediation, also known as alternative dispute resolution, is a process where the parties in the case sit down with a mediator, who is a neutral third party that is trained to facilitate settlement discussions.
The Cobb County Alternative Dispute Resolution Center reports that 69% of family law cases settle at mediation, making it an effective tool to settle your case without the expense of trial. For most people going through a divorce, or other family law case, mediation is a new process, and naturally one that involves lots of questions. Here’s answers to the five most common questions clients ask about mediation:
1. Can the mediator force me to settle?
No, a mediator is not the Judge, or final decision maker for your case. While a mediator might be a part time Judge, or even a former Judge, they are not wearing that hat when they mediate your case. In fact, mediators don’t even have to be attorneys. They do have to be neutral, which means they have no stake in the outcome of the case or any particular bias towards the parties. Mediators help both parties see the strengths and weaknesses of their case and help find common ground to facilitate settlement.
2. How much will mediation cost?
Mediator’s costs range between $95 -$350 per hour, with the average mediator costing about $175 per hour. The cost of mediation is usually split between the parties. Each party will also have to pay for their attorney for the time spent at mediation. Your attorney can help choose an effective mediator and guide you through the process. Also, in some cases your attorney can request the other party pay the mediations costs.
3. How long does mediation take?
Mediation can last from one hour to more than eight hours depending on the complexity of the case. It can be a long and exhausting day, so be ready to stick it out and be patient. Often this is the only chance you may have to get the settlement you deserve so it’s better not to let fatigue cause you to settle for less.
4. Am I going to have to be in the same room with the other party?
Maybe, but not usually for very long. Emotions run high in divorce and high emotions sometimes result in screaming matches. Most mediators, especially where emotions are high, utilize a tool known as caucus. That means the parties are in separate rooms during mediation and the mediator goes back and forth negotiating a settlement between the two parties. Where emotions are less volatile, the parties can be the same room for all or part of the mediation and are free to talk to each or through their lawyers depending on their comfort level.
5. What if we can’t agree?
Worst-case scenario everyone goes home and the attorneys prepare for trial. However, I strongly believe it’s best to leave mediation with an agreement, even if it just a partial agreement – and get everything in writing. Best-case scenario is you leave mediation with a full settlement agreement, in writing, signed by all parties. If that’s impossible then the mediator can help figure out what the parties can agree on and get a partial agreement. This helps narrow the issues at trial, which will not only make the trial simpler for the judge or jury, it will also make the trial less expensive.
I’ve heard it said that if at the end of mediation the parties reach an agreement that they are both a little unhappy with – the mediation was a success. Most times an agreement requires both parties to compromise. Winston Churchill once said, “Attitude is a little thing that makes a big difference.” So bring an attitude of compromise and of course, hire a good family law attorney who is exceptionally familiar with the process.