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When I practiced family law in Georgia for 12 years, mediation or other forms of alternative dispute resolution were ordered in every case. Indeed, no judge would hear any nonemergency matter without litigants jumping through this required hoop. The courts scheduled multiple cases to be heard at the same time. While one case was being heard, the parties for the other cases were meeting with mediators.
Imagine my surprise when I started practicing family law in Pennsylvania, where court-ordered mediations, especially for equitable distribution, are rare. Instead, cases are conciliated, usually with the very judge who would be hearing the case.
Conciliations are an effective means of settling family cases. Indeed, a strong opinion from the trier of fact can sway even the most stubborn party at times. Many divorcing couples, however, do not want to ever see the inside of a courthouse. They do not want to engage in expensive and sometimes excessive discovery, file Inventories, and wait months for each step in the process to occur. This is where private mediation comes in.
I spend the vast majority of time on litigation cases because litigation is time consuming. However, I am seeing more and more couples coming to me to mediate their cases. They tend to be knowledgeable about their finances and eager to resolve their divorce cases quickly and relatively amicably. I say relatively because couples who want to mediate are not without their hurt feelings, disappointments and communication issues. That is where the mediator comes in.
Mediation is not about holding hands and singing kumbaya. It is about working through differences and disputes while checking the negative feelings at the door. To do this effectively, I insist that I first meet with each party separately. These meetings usually occur virtually. Some couples balk at this requirement, not wanting to pay for the extra time as unnecessary. I tell them their individual meetings could just be 10 minutes if they have nothing to tell me. Ironically, those are usually my longer meetings.
In my individual meetings, I review each party’s intake form, which includes a list of their assets with values and incomes, in addition to information about their children. I look for discrepancies and missing information. The rest of the session is when I hear their story. Whatever they want to tell me about their marriage, their breakup, their pain points, and what is keeping them up at 3 a.m. Is it cash flow or is it retirement? Maybe they are worried about being a single parent and how they will be able to balance their jobs and time with the children. During these meetings, I also throw out creative ideas to address their pain points. I sometimes give homework, such as finding out the cost of health insurance or working on a budget.
In my mediation agreement with the parties, I state, “each party is encouraged to seek individual counsel during the mediation process and before signing any final legal agreement.” Some parties do indeed meet with counsel before they meet with me, but many do not. If a party asks me for legal advice during the meeting, I tell them to discuss their question with an attorney because I cannot provide them with legal advice.
After I have met with each party separately, we meet together, usually in person. I often find that the parties have discussed the ideas I have mentioned in the individual sessions, or at least thought about them. We gradually figure out where the common ground lies and ferret out where they are still apart.
I understand that as a mediator, I am a neutral facilitator, and my job is to help parties reach a consensus. In that moment, I am not the litigator, negotiator or advocate. If one spouse wants to pay the other eight years of alimony on a two-year marriage, and they both agree, it is not my job to point out that such an outcome would not occur in the courthouse. The parties have chosen to stay out of the courthouse.
Not all parties want their mediator to be a pure facilitator. More and more in joint sessions, parties turn to me and say “we just want you to tell us what to do.” They tell me, we chose you to mediate our case because you are experienced. At first, I was uncomfortable with the idea. Then, I remembered my days practicing in Atlanta.
In Fulton County, Georgia, sometimes, rather than mediation before trial, parties would be ordered to a late case evaluation (LCE) or a judicially hosted settlement conference (JHSC). An LCE is an evaluation by an experienced, well-regarded attorney either assigned by the court or chosen by the parties to facilitate a settlement. They idea is that by giving their opinions and telling the parties the strengths and flaws in their arguments, they spark compromise and settlement. A JHSC is similar to an LCE, but it is performed by a retired judge who previously presided over family law cases.
LCEs and JHSCs are much like conciliations, except that when parties make concessions, they are not doing so before the trier of fact. The absence of the trier of fact allows for there to be separate caucuses with each side without there being ex parte communications with the court.
So, when faced with parties that say, “we just want you to tell us what to do,” I give them options. I can continue to be the neutral and work through the issue with them, they can go back to their attorneys, if they have them, or, if they both agree, I can tell them what the law states about their issue or what I think they should do. For example, if they ask me how much the child support should be, only with their joint consent, I will run child support numbers. They have to agree to the income numbers I use for the calculation and neither party is bound by the calculation. The latter option is usually the one they choose, and that invariably leads to settlement. Even if the parties disagree with what I tell them, it gives them a frame of reference to then decide what is best for their situation.
Once the parties settle their case, I draft a nonbinding memorandum of understanding, which they can review with their respective attorneys to finalize the divorce. The whole process can take as little as a week or two and avoids the costs and delays of litigation.
Sometimes, mediation is not the right path for parties, or they have tried mediation unsuccessfully. Another potential alternative is arbitration. Unlike mediation, in arbitration, there is a trier of fact who will decide the disputed issues in the case. There is a proposed bill, The Uniform Family Law Arbitration Act, HB917, currently moving through the legislature, which, if passed, would provide families with this voluntary and private process for resolving their disputes without setting foot in the courthouse.
Whether it is mediation, LCE, JHSC or arbitration, any form of dispute resolution will reduce the burden on the courts while saving parties time and money.
Reprinted with permission from the February 20, 2024 edition of the Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved.