Divorce Mediation: Ready to Make Some Hard Decisions

Mediation is a requirement for most South Carolinians facing divorce.  A majority of our counties now have a mandatory mediation requirement before a final divorce hearing can be scheduled.  Even though mediation is becoming mandatory in most areas, it is also a great idea to go through mediation if you cannot resolve your case on your own.  So how can you make the most of your mediation?

alf_bettermediationsI am a certified family court mediator and I represent a lot of people who are facing divorce.  Because of those two roles I have been involved as a mediator or as a lawyer in a lot of mediations.  One of the frustrating things about mediation is when lawyers and clients fail to come prepared to the mediation to make a decision.  This can happen for a number of reasons.  Perhaps the lawyer just did not have an adequate opportunity to prepare.  There may have been some difficulty obtaining discovery responses from the opposing party.  It may just be a lack of understanding of the issues involved in the case.  Sometimes clients come to mediation with an attitude that their case can never settle or they have not considered what they are willing to accept to have their case resolved.

Mediation is a long process and in order to successfully resolve your divorce through mediation you must come prepared.  Here are three divorce mediation tips:

1. Understand the issues involved in your case.  In order to make the best decisions possible you need to work with your lawyer to understand the issues and how the law applies to them.  This is where you engage your lawyer’s duties as a counselor.  Understand where your case is strong and where it is weak.

2.  Come to mediation with priorities.  Know what you are willing to let go of and what is non-negotiable.  If you wait to consider these items for the day of mediation you will quickly feel overwhelmed and not be able to make a decision.

3.  Come prepared to make a decision.  Mediation is a negotiation.  You likely won’t have a share a conference room with your spouse and you will have your lawyer there with you, but make no mistake, you will be asked to be an active participant in the mediation. It is very difficult to get a case resolved when clients are unable to make a decision about the issues in their case.  That paralysis and failure to make a decision is actually a decision not to make a decision.  That choice can lead to continued litigation, contested trials, increased attorney fees, and the risk of having a judge determine the outcome of your case thereby removing any control and decision-making from you.

5 Reasons to Mediate Your Divorce

South Carolina Family Courts will all soon require you to mediate your divorce case before you can have a final hearing.  Many clients look at this as just another way to feed the system, just one more thing to do before we can resolve the case, and just one more waste of time.  If this is your attitude, let me encourage you to look on the bright side of mediation.

1.  Proximity

Mediation gets all of the decision-makers together under one roof.  Depending on your mediator, you likely won’t share a conference room, but you will be just down the hall from one another and having everyone in the same place at the same time cuts down many barriers that people like to hide behind.

2.  Control

This will be one of, if not the, final times you have any control over the outcome of your case.  A mediator is not a judge.  He will not sit in with you and your spouse, listen to both sides, and render a verdict.  In fact, that is what you are trying to avoid.  You and your spouse are the only ones who truly know all of the facts and circumstances of your marriage and divorce.  Who better to decide the outcome, right?  The other option is for you to spend a day or more in trial, presenting your facts to a judge who knows nothing about you and your spouse (really, he knows what he hears during the case and he may have a totally different impression of the facts than you do) and hoping the judge rules in a favorable way to you.

One thing I like to tell parties as they enter a mediation is that since they are in control of crafting the outcome, they can be creative in how things are resolved and can specifically tailor the result to their lives.  If they leave it up to a judge, the judge will be pigeonholed by state law and public policy and will be less creative with his ruling.

3.  (More) Affordable

I know you probably look at mediation as another person with their hand out.  This is another lawyer who gets to charge you $200 per hour and has no interest in the outcome of the case.  I want to encourage you that this is a great opportunity to save a lot of money.  While your mediator may charge $200 per hour (with each party responsible for half) and you are paying your lawyers to be there, the alternative if to schedule a trial with the court that could last a day or longer and pay your lawyer to prepare and represent you in trial,  and to pay your expert witnesses and other subpoena fees.

Let’s do some quick math.  For this example let’s assume your lawyer’s hourly rate is $200 per hour.

A one day trial will cost you:

6 hours of court x your lawyer’s hourly rate of $200 = $1,200 for court.

Your lawyer probably spent 3 hours preparing for every hour of court time so that’s 18 hours x $200 per hour = $3,600.00

That’s nearly $5,000 for the privilege of having your case decided by a judge.

That compared with the $400 or so you could have spent on a mediator.

4.  Time

If you successfully mediate your divorce, you will only need a short hearing (15 minutes or so) to finalize the divorce and seek approval of the mediated agreement.  This can typically be heard by the court within 4-6 weeks.  If, you don’t reach an agreement and an extended trial is necessary it can take months or years for your case to be heard.

5.  The Process is Less Adversarial

The divorce process is typically pretty hostile and not a lot of fun.  If you think getting served and reading your spouse’s pleadings or affidavits was a drag, wait until you get cross-examined by his lawyer during the trial.  It’s really no fun.  The process is grueling, demanding, and can lead to spouses disliking one another even more.  When there are children involved it is important to retain some ability to communicate and work together.  By working together to resolve the divorce through mediation you cut out additional opportunities for each spouse to throw mud and fire at the other and to damage the future relationship and ability to co-parent the children.  Mediation opens the lines of communication up between the parties so the conversation is less posturing and more successful in making progress to end the litigation.

Description of Family Court Mediation

In many South Carolina counties mediation is required in a contested family court matter.  A contested case means that there are issues (no matter how big or small) that you and your spouse do not agree on.

Mediation is an opportunity for you and your spouse to resolve the case yourselves without as much court intervention.  In the long run, cases seem to be resolved more successfully because the people who know the most about the case and who have the most invested in the outcome of the case (you and your spouse) are the ones who are deciding how things will be resolved.

Typically, mediation begins with you and your attorney in one room and your spouse and his/her attorney in a separate room.  The mediator is typically another attorney, though they do not have to be, who has been trained by the South Carolina Bar in Family Court mediation.  The mediator will explain the process and their role and a few rules about mediation.  After these introductions with both parties, the mediator will begin discussing the specifics of the case with each party.

The mediator’s job is not to make any decisions or to tell you or your spouse that they are wrong and should do what you want them to do.  The mediator’s job is to help you and your spouse understand what is at stake and to help you find some common ground on the issues.

The hopeful outcome of your mediation will be a complete agreement.  However, if you are not able to resolve all issues in your case but you are able to resolve some your mediation will still have been a success because you will have eliminated some of the contested issues resulting in less court time required for the trial of your case and lower attorney fees.

Good luck mediating your case!

Family Court Mediation is Confidential

Mediation is required for all contested family court cases in Greenville County and in many other South Carolina counties.  One of the concerns that I hear as a mediator and as a lawyer who attends mediation with his clients is that clients are concerned with what they are saying to a third-party lawyer (the mediator) or the kinds of offers or counter-offers that are being made and how that might come back to haunt them down the road should their case not settle.

In South Carolina, all family court mediations are confidential on several levels.  First, when you communicate something to your mediator, you can specify that you do not wish for the mediator to share that with the opposing party.  Second, everything you discuss in mediation is confidential so that if you and your spouse do not settle the case at mediation, you do not have to worry about them bringing up what you offered in trial.  The mediator cannot be called to testify about the mediation and his notes cannot be subpoenaed.

This confidentiality gives you a “free bite at the apple” so to speak.  You have an opportunity to be creative with your spouse to resolve the contested issues in your case.  You may make some offers that you ordinarily would not in an effort to settle the case without fear that they could be used against you later on.

What’s Up with Family Court Mediation?

If you have already filed your divorce action you have probably already found out that in many counties in South Carolina, you will be required to go to divorce mediation in your case.

So what is mediation?  Most simply, mediation is a negotiation meeting between you and your spouse.  It acts as a chance to get everyone “to the table” so to speak where the case can be discussed and hopefully all of your issues can be resolved without a trial.

Generally, you and your spouse will be sitting in separate rooms with your attorneys and the mediator will go back and forth between the rooms to assist you in finding some common ground and helping you to see how things more clearly about your case.  While a mediator is often an attorney who has experience with similar cases to yours, the mediator is a neutral who has no experience with you or your spouse and they can not give you legal advice about your case.

There are several rules that you should know about before going to mediation.  First, everything that is discussed at mediation is confidential.  That means if you and your spouse are not able to work out an agreement whatever you have discussed cannot be brought up at trial and used against you.  That means you get a free bite at the apple.  You may offer something to your spouse as a way to settle your case that you don’t necessarily believe they are entitled to.  But, if you do not settle your case they can’t throw that back in your face later on.

The next thing you need to know about mediation is that many issues are settled there.  Mediation is a success if only some of the issues are settled – even if the entire case is not resolved.  This saves you money and time in the long run because you are not forced to litigate every single issue in your case.  What?!?  Let’s just use the following facts as a sample.  You file for divorce against your husband and you seek custody of your children, child support, reasonable visitation for your husband, property division (specifically your husband’s 401(k) and the marital home) and alimony.  At mediation you can’t come to an agreement on alimony or how much you feel you should get from your husband’s retirement account, but you do settle the custody, child support and visitation issue.  This means you don’t have to worry about the expense of a Guardian ad Litem for your children and you do not have to litigate the sticky child custody issue that could take up significant time in the final trial.

One thing I like to urge people when I mediate their divorce case is not to assume that the case won’t settle.  Many cases seem to start out a long way apart, but end up settling many (if not all) of the issues.

Do you need more information about divorce mediation?  Comment below or send me your questions.