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Mediation Myths and Realities

On Behalf of | Nov 3, 2016 | International Family Law

Mediation is one aspect of the beast that is family law. Mediation is a necessary evil in certain respects and a welcomed respite from litigation in others. We settle cases at mediation. Or we don’t.

Mediation is the process of using a neutral, objective third party to assist the parties towards settling their case. A mediator is often, but not always, an attorney who is not there to give you legal advice about your case – that’s the job of your attorney sitting next to you – but to facilitate a conversation that can hopefully, after a short time or after many hours, end with a done deal and a finished case.

So the point of this blog post is to answer some questions you may have about mediation in Georgia during your divorce in a handy dandy “myth vs reality” format. Hopefully, this will take some of the fear and hesitancy out of mediating.

MYTH: If I settle at mediation, I’m letting my ex win.

REALITY: This is very, very wrong. If you settle at mediation, you’re both winning. A case is not “won” or “lost” because there’s no big trial at the end. Roughly only about 10-15% of family law cases ever go to a final trial. Most of the time, we settle out of court. Settling out of court is cheaper for the clients, less time-consuming, and less stressful on both parties and/or potential witnesses (including children).

MYTH: If the judge heard my case, I’d definitely win.

REALITY: That’s not necessarily true. Taking your case and those issues that haven’t yet been resolved all the way to trial is a gambit that may not work out for you. As impassioned and competent as your attorney may be, sometimes you just don’t have the case you think you do. Or maybe the judge is in a bad mood and isn’t feeling very pro-Dad today. Or maybe this particular judge NEVER awards you attorney’s fees no matter how bad you ex has been behaving. Settling at mediation means that you have a hand in what the final result is – you’ve helped steer the case towards that ending – and that you’ve been active in the negotiations that will help you transition out of this relationship. Taking your case before the judge is risky because it takes the decision out of your hands and puts it in someone else’s, and that may or may not go your way.

MYTH: The mediator is biased because they want me to listen to my ex’s side of things.

REALITY: No. The mediator’s job is to help you think of things from a different point of view. One of the most important aspects of mediating is facilitating the conversation between the parties. Personally, I try to always “caucus” at mediation. This means me and my client are in one room, and the opposing party and their attorney (if they have one) are in a different room. The mediator will go from one room and listen to that party’s side of the story and what they’d settle for, and then come to our room and do the same. The reason I prefer to caucus is that it seems easier for people to open up to the mediator and become more receptive to the process without their ex sitting across the table from them. (I’m reminded of the infamous first scene from “Wedding Crashers” — “You can have the miles”.) A successful day for a mediator is getting people to settle their case, and sometimes that means they have to play devil’s advocate to open up your mind to new ideas, offers, or resolutions.

MYTH: If we don’t settle at mediation, then that’s it, we’re going to court.

REALITY: Not necessarily. Sometimes, if we feel that we’re close to settling and just ran out of time, or if we feel that maybe we all need a little space and time to think, we can break mediation and come back again later. This is calling “leaving the mediation time open”. Or, we can take what we’ve accomplished at mediation and continue trying to negotiate and settle outside of court and outside the mediation room. It’s pretty fluid – ask your attorney if, at the end of mediation, you can try again or what the best options for you are.

MYTH: The mediator won’t like me because I’m the absent parent / abusive partner / dad / unemployed one.

REALITY: No. Being objective is their job. Their job is to give you realistic feedback but not to judge you. However, if you feel that the mediator is giving you a hard time or being unfair, talk about it with your attorney outside the mediator’s presence. If they’re feeling the same way, there’s nothing to stop you from stopping and maybe trying to get a new mediator. Again – your attorney is there to help you and make you feel comfortable with the process; talk to them if you’re feeling like things are hinky.

So don’t refuse to mediate because you think you’re conceding or losing something in the process. Most courts will require you to mediate at some point anyway, prior to ever stepping foot into a courtroom. Now, is it true that some mediations don’t work out? Yes, of course. But that’s definitely not the norm in my experience. Mediation is your chance to participate in your own outcome, so make it a point to not lose at winning.