Legally Speaking by Cassandra Savoy, Esq. OP/ED
In this very litigious and all too often disagreeable world we live in, I am always looking for ways to find solutions without the bitterness of a knock down, earth-scorching event that all too often happens in our courts. I really like the idea of mediation.
But, what’s it like in mediation? Generally speaking, it is relaxed and “informally formal.” Often, mediators use a round table so that there is no subtle indication that one party to the mediation is more important that the other. If you and your domineering husband are at mediation and he enters the room first and sits at the head of the table, it might give the impression that he is charge just because he is sitting at the head of the table. Everyone gets a chance to speak and to be heard.
Usually, the day’s discussion revolves around the homework that has been assigned. For example, if the issue is parenting time, the mediator might want to look at how your children spend their time. Where they attend school, how they get to school, the hours school is in session. In today’s Covid world, a valid question might be does your home have sufficient internet bandwidth such that you and the three kids can all be on line at the same time? If not, what do we need to do to resolve that issue?
If the issue relates to equitable distribution of marital assets, the mediator might ask the parties to provide documentation of monthly expenses, or investments, or pension plans so that all of the parties understand what’s to be divided. The mediator is a neutral. She is not on your side, but neither is she on the other person’s side. Her job is to facilitate discussion and to help the parties find a solution to their problems.
Often in a relationship, one of the parties feels dominated, “unheard,” or overlooked, overtalked, disrespected by the other party. Mediation is empowering. Here’s why. First, the mediator gives each party a voice. The quintessential ground rule is that only one person speaks at a time and each party gets to say what he/she thinks. On the rare occasion when one party insists on “overwhelming” the other, the mediator may separate them…either in a separate room in the office or in the waiting room if the mediation is via Zoom.
The mediator may speak to each party without the other but will never reveal what is said to the other party without that party’s express permission. Mediation is about solving problems. For example, during mediation, a frequently heard question is, “Why?” If you tell us “why” the mediator and the other party can better understand your position, and perhaps suggest a possible solution that satisfies your needs and to which the other side can agree. Without the “Why” question, the parties get bogged down into the “Just because…” There is no viable compromise to just because.
Compromise is a win-win. Compromise is not I win/you lose. You have to give to get. For example, if the issue is dividing marital assets and liabilities, one party may decide that they will give up what they might be entitled to in terms of wife’s pension in exchange for her accepting less of the proceeds when the house is sold. Or, one party might decide to accept less child support than the law would ordinarily give in exchange for permission to relocate out of the state in two years if they can work out a visitation scheduled.
Because you can do anything that is legal in mediation rather than do what a judge decides is best for you, mediation is empowering. You have control over how your problem is solved. You are not stuck with what the court would do, or some cookie-cutter solution, but are free to act in what you believe to be your best interest. For example, I once had a couple who both wanted residential custody, but neither could make a reasonable plan without changing employment. So, they decided to share joint legal custody. They would pay support to Wife’s mother to keep the children during the week, and they would alternate weekends with the children. This way, they could say that they were “co-parents” with fifty-fifty parenting time.
Usually, a mediation session lasts about 60 to 120 minutes. The cost of mediation in comparison to litigation is good value for the dollar. Most lawyers in Essex County charge between $375 and $500 per hour. Once begun, litigation takes on a life of its own and you have no idea when or how it will end.
You are required to adhere to court mandated rules and procedures; getting into court for a hearing could take as long as ten weeks depending on the county where you case is venued. With a mediator, you can likely schedule an appointment within a couple of weeks. You pay your attorney each time she picks up the file to speak with someone on your behalf. Many mediators work from a flat fee paid by each party. Often an agreement can be reached in three or four sessions which could result in a Consent Order which is a document for the court to sign to make the agreement official. Or a memorandum of understanding that addresses all of the economic issues of the marriage.
At the end of the day, when you ask yourself, “Why mediate?” Here are three good reasons:
1. Far less expensive than litigation
2. You control the time, not the judge
3. You control the solution to the problem
4. You will not be in court six weeks later with the same issues because studies show when the parties agree to a solution, they usually stick to the agreement.
