Originally written for and published on DivorceTownUSA.com June 6, 2016.
MEDIATION: Often BEST for Everyone
by Cristi McMurdie
Mediation is one of the best ways to get your divorce or any other family law dispute resolved. I am a big proponent because when it works, people move forward with their separate lives so much healthier and sooner than a routinely litigated divorce. Mediation is faster, it costs less, and it gives both parties a chance to be heard and to discuss things that may never be discussed in a court room setting. In every divorce, there are private matters that the court really has no jurisdiction over, and yet with a discreet and respectful discussion in mediation, it may lead to a better dialogue that influences settlement and peace down the road.
I have been involved in the mediation process for close to two decades now. Over the last couple of years, I have noticed a change for the better here in Arizona. It seems that the general public is becoming more aware of the option of mediation and requesting mediation more often. It’s not just that it’s been around for 20 or 30 years now, but that the courts in my jurisdiction are finally ordering people who can afford private mediation to participate first before they are allowed to proceed on to court litigation. This saves the court time in trial and saves public resources, and, just as important, it also helps the couple to be part of a process that is less stressful. With mediation, they resolve their case faster because they don’t have to wait on the court’s calendar. The court also has the hope that the case will settle and not need to return for a trial and a judge’s decision, essentially helping the court to manage its astronomically overflowing caseloads.
I have had the good fortune this year to be selected by a divorcing couple’s attorneys for court-ordered private mediation. In this type of mediation, my office reserves two different conference rooms that the parties settle into while I, the mediator, will “shuttle” back and forth between offers and counter offers on various issues. This is called “shuttle mediation” and generally parties prefer to be in their separate room when they come to mediation with their attorneys – especially with court-ordered mediation. The spouses each paid their share of my hourly rate for an estimated time of 4 hours. At the end of 4 hours, the spouses wanted to finish their case because we were very close to a full settlement. An all-day mediation takes extreme focus and years of skill-building to keep a positively moving dialogue centered in peaceful and fair resolution. But I loved the fact that we accomplished a full resolution at the end of the day. I later learned from both attorneys that they never thought the case would settle. They were simply complying with the court order to attend private mediation.
Another type of mediation is when the parties do not have separately retained lawyers and our mediation meetings are comprised of the three of us, each spouse/parent and me – all facing each other at the table. I ask the spouses to choose the most important topic(s) they want to resolve first. We list those topics out and they are encouraged to come fully prepared to discuss this agenda list for that mediation meeting. You see, if you want to divide your assets, or your debts, you have to know what they are worth or how much it is. Sometimes this takes a bit of work before our mediation meeting, and the spouses have to do this themselves, since they do not have attorneys to gather it for them. Many people today want to save their hard-earned resources and are adept at using the internet and other ways of gathering the information they need for our mediation meetings. In these mediation meetings, I will often objectively and neutrally share legal family law information and the basics of community property. When I conduct private mediation with a couple who does not have attorneys, we spread the mediation meetings out over time to give the couple time to consider and reconsider their decisions, to give them time to deal with their own changing lives, and to wait for the time in their case that they are allowed to file their final agreement called a Consent Decree with the court for final review and order by the court. This type of mediation may take as few as four months up to about a year, depending upon what the spouses need to do. Sometimes we include allowing one spouse to get a new job, or to sell the family home. We can work together and as a team in mediation so that they start off as well as possible in their new separate lives.
Sometimes parties have been to court on their own without attorneys and they have realized they don’t want to go back to the court to finish their case. They had showed badly in court and it didn’t bode well for them. Either they have had problems with the judge or they want it handled sooner. They need some help on the final thorny issues they could not settle between them. When this happens, they will come for mediation on that remaining term. This usually takes one two-three hour meeting and often we will write their stipulated agreement to file with the court. For example, last summer, a couple had been to court on their own about 2-3 times. They knew they were both in trouble with the judge if they had to go back to finish their case, and yet a trial was set for them several months later in the year. I helped this couple to resolve their parenting time conflict and regarding transfer of the children, as well as resolving an attorney fees award that had been assigned to one parent. This couple had their own incentives to settle their remaining issues, but they just couldn’t do it by themselves. That is where someone like me comes in who has seen these issues hundreds of times, with many options and ideas the parents would never have thought of by themselves. What I also bring to my clients is my own experience as a divorced parent who raised two children in a joint custody plan. So, I understand what it is like for my clients and I have compassion for them, and even more important, I have great concern for their children.
Last year, a young couple that had been married for a brief period of time came to me for mediated annulment of marriage. We were able to meet the court-required terms to get an annulment, without blame, and at the same time citing a “material misunderstanding” that made the marriage contract void. Yes, with legal creativity and agreement we can manage all family law conflicts through mediation. This young couple was grateful that we could get their marriage annulled without a long and protracted battle in court over whether they really had a marriage or not, when they both felt they never really did.
Though a lot of my mediation cases cover divorce, I believe my favorite cases are the paternity cases, where I can help young fathers or mothers understand their responsibilities and their rights and get them started in a routine parenting plan. Many times, the young couple also learns how to communicate with each other, and gathers new tools for conflict resolution of their own for their future when changes arise in parenting. After all, they have years ahead in raising their child.
Fortunately, mediation has been around long enough now that a study or two has been conducted on the long term effect on families years after the divorce. In Dr. Emery’s study, the difference in the parent-child relationship showed that mediation has a better long-term effect: twelve years later, after 5 hours or more of mediation, the non-residential or non-custodial parent saw their children 3 X more than litigated cases. Further, a striking 52 % talked to their children weekly as compared to 14% who litigated their cases. These numbers tell the reason why I prefer mediation when it is possible, to the old-fashioned adversarial way of handling family matters, that is, it is best for everyone.