Not all cases get resolved by a trial. In fact, the large majority of cases settle before a trial can be conducted. One of the most effective ways of effectuating an amicable resolution of issues is by means of mediation.
Mediation is a process by which the two parties meet with a professional, disinterested neutral with an eye towards effectuating some sort of compromise so that a final agreement can be reached instead of risking the stress, uncertainty, and expense of trial. If the parties are represented by attorneys, the attorney can participate as well.
Mediators are often senior family law attorneys or retired family law judges. In session, they will help each of the parties understand the strengths and weaknesses of their positions as they relate to the other party and help generate constructive ideas for reaching compromise. While mediation does not always guarantee that settlement will be reached by the end of the session, it does give the parties an opportunity to see how their varying positions are viewed by a disinterested neutral who is familiar with the subject and to perhaps look at those positions from a new perspective.
Mediations are conducted in a manner to try to keep the parties comfortable enough to continue the session and keep talking. Often, the mediator will utilize the caucus method by which each party and his or her attorney is in a separate room and the mediator travels back and forth between the two rooms in an effort to discuss and narrow differences. This is intended to help reduce the level of hostility and tension that might otherwise hamper the proceeding.
If agreements can be reached, they are put in writing and signed. It is not enough to have a simple handshake at the end with a promise to prepare a formal written agreement later. A binding settlement must contain proof of agreement as to the terms and the best way to do this is to have a written document summarizing those terms signed by both parties.
Mediations require patience, compromise and the ability to see the other party’s perspective. If there is a significant history of domestic violence between the parties or if there is an active Order of Protection in place, mediation may not be scheduled or conducted.
The court may be able to provide limited mediation services at a reduced cost.
While there is a significant number of skilled attorneys and retired judges who are frequently employed as mediators, the court may itself offer mediation services at a significantly reduced fee utilizing other skilled attorneys and retired judges who volunteer their services. This is often known as Alternative Dispute Resolution, or “ADR”.
While the services provided by ADR are valuable and of high quality like those afforded by private mediation, there are limitations. Usually, the duration of an ADR session is limited to three hours. In addition, because it is in high demand, there may be a fairly long wait for a scheduled ADR session. The court may also direct that more affluent individuals engage private mediators rather than ADR so that ADR may make more slots available for individuals who cannot afford private mediation.
Victor Garnice has guided many clients through mediation sessions, many of which have resulted in complete or partial settlement, both through pre-session preparation and participation during the session.