When I was in law school, mediation was a required course. Almost immediately, I didn’t care for it. I saw mediation as the antithesis of being a lawyer. I could not understand (then) how trying to learn everything that law school had to throw at its students in becoming zealous advocates for their clients could be reconciled with the mediation process; a neutral facilitated negotiation.
Mediation is now a mandatory process for all contested issues raised in family court litigation. There are, of course, certain exceptions to this general rule, but they are few and nearly all private actions in the family courts must be submitted to mediation before the litigants can present their case for trial. The family court system is also now following a 365-day rule, which requires all cases filed in the family courts to meet particular benchmarks within one year of the filing of the summons and complaint. If those benchmarks are not met, for whatever reason, then the case will be administratively dismissed.
Participation in mediation is one of those benchmarks. Before either side of the litigation may request a final hearing, there has to be a certificate of exemption from the mediation process in the court’s file, if an exemption applies. Alternatively, and more commonly, there must be a mediator’s report declaring that the mediation process was attempted. If the mediation was unsuccessful, then the parties may proceed towards a trial of their issues.
I, like many other practicing family law attorneys, participate in the mediation process as the attorney representing a party, and also as the neutral, assisting other parties to reach a resolution of their issues. I now have a deep appreciation for this process. As the attorney representing a party at the mediation, there is the opportunity to learn from the offers that are made or the arguments that the mediator is permitted to present during the mediation where the opposing side of the case believes are their greatest strengths, or my client’s greatest weaknesses. They are certainly not putting their cards on the table, but their cards are showing. That information is incredibly beneficial to the client, and will be put to use if the mediation is not successful in further preparing for trial.
As the mediator, though, you are given a real opportunity to help litigants resolve their issues and get their case settled. This is, for me, never more rewarding than when I am able to help parents put aside their animosity for one another and reach a compromise. Parties that have a good understanding of the opportunity that mediation provides, and the potential risks they can avoid by reaching a settlement rather than allowing a judge to make the decisions entirely for them, depends, in large part, on the legal advice they are receiving from their attorney.
My opinion of mediation has changed entirely since law school. I hope that if a current family court litigant reads this and has not yet participated in mediation, they will really consider the opportunity they are being given to resolve issues rather than perpetuate conflict. For the attorneys that are headed into mediation with their clients, use everything that you are given in that process to further prepare your client’s case for trial. There is always something beneficial to my client’s case that I learn from the other side, and which I certainly did not know before the mediation started.