Is Mediation Right for Your Divorce?
Most judges in Georgia require divorcing couples to go through mediation before they will schedule a trial. Mediation is a form of alternative dispute resolution, which means it is a process where the parties attempt to resolve their divorce case without having a trial. Don’t regard this as just another hurdle that has to be crossed before facing off in the courtroom. While mediation usually carries considerably lower costs than a trial, it has other advantages, too.
A mediation is less formal than a trial, and the rules are more relaxed. Unlike a trial, the process is confidential, except for a few exceptions. (There are some circumstances in which the mediator has a duty to report information, such as if a party makes threats of violence.) This means that what you and your lawyer discuss with the mediator will not be disclosed to anyone else. The confidential aspect of mediation helps foster more open discussion and creative problem solving. The mediator will only share information and settlement offers that a party has confirmed can be shared with the opposing side.
Mediation lowers the temperature of divorce negotiations
In a typical mediation, the spouses are in separate rooms with their attorneys. The mediator goes back and forth between the rooms, communicating positions and working toward compromises. The communication is almost as direct as being in the same room but using a neutral reduces the level of emotion and allows couples to focus objectively on issues such as property division, alimony, child support and custody. A good mediator – many are former trial judges practiced in not taking sides – inspires confidence from both sides in a divorce and facilitates candid communication that might be strained if the parties sat across the table from each other. Occasionally, we will see couples who want to speak to each other directly in at least part of a mediation, and the process allows this flexibility.
A mediation that does not resolve all the issues of a divorce usually is still useful. Sometimes we will see couples reach an agreement on one part of the divorce – division of property, for example — but elect to go to court over another issue, such as alimony. Even for the unresolved issues, the mediation can provide clarity on where each party stands. It may also be used as an opportunity for the lawyers to agree on pre-trial issues, such as deadlines for exchanging additional discovery, choice of a guardian ad litem and other matters that must be addressed on the way to a courtroom.
Count on confidentiality
For many couples, the confidentiality of the mediation process is important. High-asset couples who do not want to reveal the details of their wealth and those with a public profile are protected from having the details of their personal lives going into the public record. If a case is resolved at mediation, only the final agreement and other final documents will be filed with the court, and materials such as balance sheets, bank and investment records, reports, and other materials all stay with the couple and their attorneys. Except for a few exceptions, the mediator is held to strict confidentiality and may not be subpoenaed to testify if the divorce ends up in court. Unless you enter into an agreement, you are not bound by the settlement offers or ideas discussed at mediation.
Respect the process
Mediation agreements should not be entered into casually; they are binding agreements. While there are mediators who will facilitate discussions with parties who don’t have lawyers, it is a good idea to have an attorney representing you. Though mediation is a less formal venue, the stakes are just as high as you negotiate division of assets, alimony, child support and custody issues. A skilled divorce attorney will advocate for you, think of creative solutions to complex problems and ensure that any agreement that is reached at mediation contains a comprehensive summary of all of the important terms of the agreement.
As in a trial, your lawyer will prepare for mediation by ensuring you have complete information on all financial accounts, investments and property assets, and the financial records of a business owned by a spouse. For high-asset couples, this often requires a report by an accountant, or even a forensic accountant if there is any reason to believe one spouse is not forthcoming. Attorneys will prepare just as diligently for a mediation as they would a trial in order to protect your rights and reach a positive resolution.
Most divorces settle at mediation. However, there are some circumstances where a case should not settle at mediation. If you are missing important information, such as complete financial documents, or if you are too emotional to make a decision, then you should not settle your case. If you leave mediation at an impasse, this does not mean your case must go to trial. Sometimes a second mediation or other forms of alternative dispute resolution can help resolve the case. For most couples, mediation will accelerate the divorce process, reduce legal expenses and allow the spouses to get on with their lives with less stress.
Boyd Collar Nolen Tuggle & Roddenbery welcomes the opportunity to assist you. For more information about how Boyd Collar Nolen Tuggle & Roddenbery can help you, please contact us at 770.953.4300 today.