II. When to Mediate?

AS EARLY AS POSSIBLE.

• Mediation allows client management of the case, promotes joint decision making to consider the use of neutral appraisals for property and limits the discovery to only what may be needed to make informed decisions without unnecessary legal expense and before conflict is out of control. In those cases where the parties BEGIN the divorce process by cooperating and creating trust through the mediation process, there is a far greater probability that the parenting and financial issues will be resolved early, in a cost effective manner and there is far less likelihood that conflict will interfere with their ability to communicate regarding future parenting decisions and/or financial decisions related to their children.

• For many reasons, some cases start down the wrong path with litigation over parenting and/or financial issues. In such cases, the parties may have already made decisions with their “legal and financial team” to value their assets separately and this creates the battle over “which expert is right”. Mediation can still be effective even after the parties have engaged in high-conflict/significant expense litigation efforts by focusing on the uncertainty and risk of trial, as well as the damage control over how much more is going to be spent in the trial process, post-trial motion and appellate proceedings that may occur because one or both parties are unhappy with the trial outcome. Rule 114 adopted years ago creating alternative dispute resolution processes requires that the parties engage in either mediation or some other alternative dispute resolution process before they go to trial. Most cases actually settle before trial and mediation is often used to bring the parties, their experts and attorneys together in a structured mediation to explore the strengths and weaknesses of each party’s case and the options for settlement to back away from trial.

• In addition to the mediation that occurs before trial, the parties are now required to mediate all family law cases when one of the parties files for review at the Court of Appeals. 50% of the cases are currently settling at the Court of Appeals before the parties spend funds and engage in the appellate process. A case at the Court of Appeals now takes almost a year to complete before a decision is rendered, with one of the possible outcomes that the case is remanded back to the trial judge to correct errors that may have occurred during the trial or errors in the judge’s decision.

• As a result of the economy today, millions of parents are out of work; homes are in foreclosure; businesses are closing; bonuses may be non-existent and salaries frozen or cut; and our legal system has probably never been so challenged by so many post-divorce proceedings to modify custody, child support and spousal maintenance based upon a substantial change in circumstances. Again, mediation is a very effective way to minimize the conflict, minimize the expense and to promote the best possible working relationship between parties as parents. Statistically, it has been proven that successfully mediated cases have a much lower probability of being litigated on post-decree motions than cases that were litigated and went to trial. Thus, there is a high probability that the parties’ experience in successfully mediating their parenting or financial issues initially, will trust that they will be successful in mediating future changes that may occur either in their parenting or financial circumstances.

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