Settling Disputes in Family Law
For whatever reason, you are embarking on a difficult and emotional journey through the family law process. Many legal, psychological, and practical concerns will require your attention. A fundamental truth of any dispute resolution approach is that it involves negotiation. You must decide the approach you will use in that negotiation and whether it will be in the context of adversarial court proceedings or in the context of an alternative to those proceedings. Most important to understand is that, at the front end of this process, you must make the most basic decision: How will you settle your matter in a way that is acceptable to you?
The “default” approach to resolution is the adversarial court system in which each side presents its arguments and “facts” to the court for the court’s decision. Often, before that decision, the parties seek to settle their dispute. In the adversarial system, such discussions are done “in the shadow of the law” – sometimes, quite literally, on the courthouse steps. Before you choose the adversarial system, consider all of your choices and determine what is best for you and your family.
Family law involves an intricate interplay among your rights and responsibilities with respect to:
- the care, supervision, and support of your children
- your duty to carefully manage and fully disclose all information about what you earn and own
- your right and duty to appropriately share all of the family’s income, and
- your duty to make reasonable efforts to maximize that income.
This information is addressed to those who face questions about the appropriate sharing of parenting responsibilities, as well as questions about the suitable management and allocation of their assets, debts, and family income in the context of separation. If you have an appointment scheduled, we will have time to discuss these concepts and to answer your specific questions.
What is Family Law Mediation?
Family law mediation is a voluntary process in which people resolve disagreements with the assistance of a neutral, trained professional. If you and your spouse are faced with ending your marital relationship, you can work together with a mediator in order to gather the appropriate records and information, identify issues, create solutions, and draft a complete agreement on all matters that should be covered. If you agree, the legal action to terminate your marriage can be handled as part of the mediation. Although most mediation involves marital separation or divorce, mediation is also an excellent process to create premarital or domestic partner agreements and to address child-related issues between parents.
Is Mediation Right for You?
As you consider negotiating your settlement, whether to a single concern or to a multitude of your concerns, you may feel that you would be better served to have assistance in the negotiation process from a lawyer and / or therapist. Financial and tax matters can be complicated and few non-lawyers are fully aware of all the issues that need to be considered. Emotional issues and communication problems can make direct negotiations very difficult. Yet at the same time, the adversarial legal system is expensive, public, and often slow. There are already significant differences between you. The prohibition or inhibition on direct contact promoted by your lawyer, the focus placed on the negative acts or manner of your opponent as told publicly to the court in Declarations, and the positional bargaining that is so much a part of adversarial negotiation, conspire to increase the distance and enhance the hostility between each other.
Mediation with a trained family lawyer / mediator has many advantages. The lawyer / mediator can help you understand the legal issues and guide you through the settlement process. All issues raised by separation and / or marital termination, including your parenting responsibilities, child support, spousal support, division of property and debts, and allocation of the costs of the process can be handled effectively in mediation. You and your spouse share the costs rather than individually paying for two attorneys. The lawyer / mediator can provide an organized framework for settlement discussions, answer questions as they arise, and offer various options to consider in reaching a resolution. Meeting with both of you simultaneously often allows issues to be resolved more quickly than in a court setting. You, rather than the system or process, set the pace at which the mediation proceeds. Perhaps most importantly, in mediation you are able to work directly together to create an acceptable agreement. Many people feel that they learn valuable problem-solving skills through their mediation experience and become more invested in the outcome. If you have minor children, you can use these skills on an ongoing basis, making it less likely that there will be costly litigation in the future.
Is Mediation Wrong for You?
Mediation is not for everyone. If you have experienced emotional or physical abuse, you will probably be better served by another process, such as collaboration or adversarial litigation. If you wish to avoid court and litigation, but do not fully trust your spouse to disclose information, or feel that you may be inclined to give in to much of what the other requests, perhaps out of guilt, fear, or the hope of reconciliation, Collaborative Practice may be a better choice for you. Collaboration may also be a better choice if you believe that there is a significant power imbalance between you or that one of you is emotionally less prepared to engage in open and frank discussions.
What is the Mediation Procedure?
The first step is for you or your spouse phone our office to request an appointment. We will schedule a consultation to learn about your situation, discuss how mediation works, assess how it would apply to you and your spouse, and answer questions so you understand your options concerning separation and/or divorce. Most appointments are scheduled to last about an hour, but there is not a specific time limit. The charge for an initial one hour consultation is $250. If both spouses decide to mediate, we will prepare a mediation agreement that spells out the ground rules of the process and the fee arrangement.
At the first mediation session we will work on a preliminary outline of goals and issues, and generally review what records and information will be needed, and discuss how the legal action to terminate the marriage fits into the mediation. Although you might hope to begin work on specific issues immediately, it is important not to rush this preliminary stage. If both you and your spouse do not have a good initial sense of what you hope to accomplish and how to reach your goals, the specific issues are less likely to be resolved in a mutually satisfactory way.
At subsequent mediation sessions, you and your spouse will determine the agenda with my assistance. You will be asked to gather information and most likely do other follow-up tasks between sessions. Sometimes, we find it useful to seek the assistance of neutral experts to value assets, analyze income, or assist with tax or financial planning. If there are substantial disagreements about parenting issues, I sometimes recommend consulting with a mental health professional experienced in mediating parenting agreements, with special expertise on children of divorcing or separating parents and custody arrangements.
Once you and your spouse have reached tentative agreement on all issues, I will draft a Marital Settlement Agreement, which will incorporate all of the terms discussed in mediation, in a form that can be included in a Family Law Judgment. Once the Agreement is fully reviewed by you and your consulting attorney and finalized, it can be incorporated in a Judgment and submitted to the court for signature and filing. It is also possible to complete a partial agreement if some but not all issues are resolved in mediation; unresolved issues can then be addressed in arbitration or traditional litigation.
If you agree, I will prepare all appropriate court forms based on the information provided by you and your spouse and ensure that they are completed and filed in order to complete the legal proceedings.
What about Consulting Attorneys?
Experience teaches that all mediation clients are best served if each retains a consulting attorneys during mediation. Consulting attorneys are an important resource if you want legal advice or individual assistance during the mediation process. In mediation, you generally discuss the law as it relates to the issues to be covered in a settlement. But a mediator cannot give legal advice or separate counsel to either spouse. Typically, consulting attorneys do not participate in the mediation sessions and do not assume control or responsibility for the outcome, but are available on an as-needed basis determined by you. After an agreement is reached and a Marital Settlement Agreement drafted, you should review it with a consulting attorney to make sure that you fully understand the legal significance of the agreement. This adds greater assurance that the agreement is complete and properly expresses your understanding of the mediated settlement. Although this may increase the cost of mediation, most participants appreciate and benefit from this additional resource. The extent that you use your consulting attorney is entirely your choice. A list of possible consulting attorneys is available, if you wish.
What Will Be The Cost of Mediation?
There is no way to predict the cost of mediation in advance, because the cost is directly related to the complexity of issues in a case and your motivation to resolve them. It is generally safe to say that a mediated agreement will cost less than one that is litigated, or one that is negotiated by attorneys. However, even mediation can be expensive. My current billing rate is $395 per hour. In-office charges related to your case (local telephone, fax, copying, postage and the like) are covered by a 4% surcharge added to fees. Out-of-pocket expenses are charged in addition to mediator time. After learning more about your situation, I may be able to give you an estimate of the probable minimum cost of the mediation. It is important to understand that I will not be able set a maximum fee because there are too many variables. I normally require payment of a retainer, typically $5,000, before beginning the mediation.