One of the most common complaints about domestic proceedings is the time it can take to go to trial. The reality is that most jurisdictions are managing very clogged dockets. In response, more judges are implementing mandatory mediation to help ease the burden.
THE DIFFERENCES IN BEING A LAWYER, JUDGE, AND NEUTRAL
Being a lawyer, representing the litigants, is very stressful. You’re advocating for a client, which could include custody of their children or division of a lot of property and allocation of high assets. Those tend to be high tension situations. The client looks to you to be their advocate and for you to get a good result for them. In that regard, the weight of the world is on the attorney’s shoulders when they represent somebody in a domestic case.
I have had the privilege of having been both a neutral and a judge. Both are neutral in the sense that neither advocates. The difference is that a judge has to make the decision. When hearing domestic cases, you have to listen to every detail. You actually have to make the decision that you think is best because the parties have not been able to work it out among themselves.
Where there is a young child involved, you have to make a decision that’s in that child’s best interest for years to come. This includes things like which parent will raise the child; which religion it will be raised in; what schools it will attend; what holidays it will observe with which parents. There are a lot of things you have to listen to and decide. You may have to grant one parent the ability to make those decisions versus the other parent. I won’t say its high stress, but its high importance. You actually have been designated as the one to make decisions for these folks who couldn’t do it themselves.
As a neutral that’s the best position to be in that is what I do primarily. You bring both of the individuals together, both of the parties, and you try to get them to work it out so that they can keep control themselves. Because once they fail at that then they’re leaving it in the hands of a judge or jury.
If they’re not able to resolve it through mediation, with a neutral, then they’re leaving it in the hands of a judge or a jury. And if it’s child custody and things of that nature, it’s going to be decided by a judge, one person. If its property division and things like that, a jury could determine that. Either way, it takes the decision-making away from them. There is much more satisfaction being a neutral because you help folks work things out amicably and enable them to avoid the battle of going to court and the tension and the stress that comes with that.
BENEFITS OF BEING A NEUTRAL
There’s no question that being a neutral is the most fulfilling. Now, that doesn’t say that you always reach a settlement in mediation. Some folks are simply not able to reach an agreement, but the majority of cases do resolve at mediation. In fact, the majority of circuits now require you to go to mediation before a judge will ever allow you to go before a judge or jury to have your case heard.
It is also fulfilling to help someone avoid the cost and the stress of going to court. If you go to court in a domestic case, you are potentially going to put your children on the stand; or a guardian ad litem, which is someone appointed by the court to go speak to the children and to investigate them. It puts your children and family through a lot of stress to have to go through that. Mediation helps folks avoid that, and that’s why it’s a much preferable method.
A judge is not going to keep a proceeding open just for you to vent. Everything is not going to be admissible in a trial when you go to court, and it may be something you think is important. You may be the party that feels you have been aggrieved, meaning “none of this is my fault and I just need to be heard, I need to vent.” That’s what a mediation allows for. There’s no rules of evidence, there’s no time constraint. You can get every piece of information you need out on the table. In some cases, it may not be about the money. It might be about, “I need you to understand that you have wronged me and me seeking that money is a way for me to show you that.”
BENEFITS OF MEDIATION IN DOMESTIC CASES
When you’re in a mediation the parties can actually get together to try to diffuse those tensions. And a lot of times it diffuses the animosity to the point where there is no need to go to court out of vengeance. If you can resolve those underlying issues that may not be admissible in court, you can often resolve a case. I tend to believe that those unresolved issues cause litigation to go on and on.
I presided over a case this year where there was a legitimization issue. The parents were unwed when the child was born and they stipulated that the child was biologically the fathers. However, the mother contested him becoming the legal father based on her family’s beliefs being different than that of the father and his family. It was more of liberal versus conservative issue between the two families, and it took over three days just to hear that.
Had those parties sat down and hashed those issues out at length, this could have been avoided. But the reality was that the tensions ran really high and those people needed to be heard, and it ended up being in a court room where they were heard.
But does your belief that you feel you’ve been aggrieved, or that your position is better than someone else’s, mean you’re going win in court? No. It doesn’t necessarily mean you’re going prevail at all. However, sometimes folks need a chance to at least present it. They’re not going to just give up. But, a majority of times, if you send cases to mediation and let these folks go through each of these issues and try to resolve them, it’ll work out.
A majority of the cases tend to resolve at mediation, and you have to keep in mind, not every divorce is a high asset divorce. Meaning, there are some folks that really can’t afford litigation. Going to court for a day, or two, or three and paying lawyers, that’s just not financially feasible for what they’re fighting over. Often, it’s just fighting over the children. There’s really no money to be fighting over, other than setting child support. So going to mediation is still less costly than going to court. It also resolves cases, which means that there is more time for cases that actually do need to be heard by a judge or jury.
Even if they don’t resolve all the issues at mediation, they may resolve some of them. There’s been partial settlements. This means that if you’re really fighting over everything, you could come away from mediation having decided all issues of property division, you could have decided spousal support issues; you might resolve all that and you’re just coming down to the issues of the children. In that way, it limits the issues the court has to hear. So that’s also beneficial. It helps the judicial economy.
ROLE OF THE MEDIATOR IN DOMESTIC CASES
I think a good neutral will listen to everything that is said by both parties, and keep in mind, most times, you are split up into two different rooms in something called a caucus format. That allows each party to speak to you privately and tell their side of the story. After which, you may or may not get back together periodically with everyone in the same room.
It provides each party with the opportunity to be heard, and it allows for the mediator to get all the information that is important to that party without the other party there influencing them in any manner. You listen to both sides, and part of the benefit of being a neutral, assuming you have experience in the field that you’re mediating, is that you see the strengths and weaknesses of each case. Part of your job is to go into the room with the other party and say “here’s some issues that have been laid out.” If those are correct, is that going to be a benefit to your case? Is that going to harm your case? How will that affect your case?
You do a risk analysis. You play devil’s advocate to some degree, but you have to let the other side know the strengths and weaknesses and you do that in both rooms, that way they have an accurate picture of the case. Often times a party comes in not seeing anything negative about their own side of the case. Then when you’re at mediation, you finally learn it from a third set of eyes, from someone that’s a neutral saying, “Here’s some issues that you might ought to potentially consider.” It helps open people’s eyes.
FUTURE OF MEDIATION
I practiced law primarily in the domestic field for a number of years before I became a judge. Mediation was a new thing. Then it became something that circuits were requiring; mediation became mandatory. I ended up being such a proponent of it that I went and became registered as a mediator myself to be able to do it. I did it for about five years before I became a judge.
So, it has grown exponentially since then, and its grown exponentially for two reasons. Number one is it has a pretty good success rate; and number two, the high success rate helps clear the court calendars and leave the things that need trying there for trial. That’s why they’ve adopted it in the mandatory, having a mandatory component that you have to do it. There’s a big buy in, and I don’t see that changing anytime soon.
WHY CHOOSE MEDIATION IN DOMESTIC CASES
People always ask me what are the bad parts of being a judge because you’re just sitting up there, and in essence acting as a referee. The bad part is that someone typically leaves the courtroom unhappy. It doesn’t matter if it’s civil, domestic, or criminal. Somebody wins and somebody loses.
Sometimes both sides lose. You may divide the assets up in a way that neither person is happy. You may award support in an amount that neither person is happy with. You may grant custody of the children, and one person is be unhappy with not getting primary physical custody. You may grant such liberal visitation that the person that did get custody is upset. It’s not uncommon for a domestic situation to happen where both folks leave unhappy with the result.
Somebody’s going leave unhappy. It’s often both of them. At a mediation session, however typically when it’s settled neither of them leave unhappy. They feel like they have compromised in good faith, and in a way that makes them say, “I can live with this.”
Mediation can also help you emotionally to get past the trauma of a divorce or a child custody proceeding. It also helps your children. They don’t need to see the parents fighting. You don’t need to be exchanging children at visitation periods for the next ten to eighteen years and have animosity between the parents. That just is not healthy for the children. The goal of mediation is to come to a point where they may not be happy, but they’re comfortable. You want to help them achieve the best result and lower the tensions in that family for the years to come.