It is particularly effective in divorce when parties have children and will have contact with each other for years to come. It is a much better way to solve differences.
Sometimes mediation and arbitration are confused. To clarify, with mediation there is no judge or jury to make decisions about you. Both sides use an independent mediator, usually a lawyer, to facilitate settlement discussions. The parties through the mediator make compromises to reach an agreement. The parties decide their own outcome rather than a judge or jury.
In arbitration, someone is either appointed by the court or agreed to by the parties to judge the matter. It comes up when our courts are too clogged with cases or cut backs in budgets make it difficult to schedule a case with a judge. The parties might decide to use someone who has been trained to be an arbitrator and they would decide the case.
In mediation, the parties control the outcome of their case.
Mediation is not a way to stop a divorce. Rarely do you see at the end of mediation the parties say “We’re not going to get a divorce, we’re getting back together.” For the most part, cases will settle at mediation.
Cases only go to court when every option has been explored and the parties require the resources of the court – either a judge or jury trial. In the Northeastern Georgia Judicial Circuit, the courts require mediation in civil cases like divorce or custody. In other jurisdiction where it is not required, the parties are seeing the benefit of it. People want to be heard and have the opportunity to express their concerns or position. Mediation gives you that opportunity.
Another advantage to mediation is it is a relaxed environment and not as intense as a courtroom with a judge. Generally, I keep the parties separated and people feel that they can say what they need to say to move the case forward or get something off their chest. I particularly love when I get in mediation and in both rooms the parties say you will never get this case settled. They are so unreasonable or we are so far apart we’ll never settle. That is usually a good sign to me that we will settle because people don’t really hear what the other person is saying. If you are mad at somebody it is hard to hear what they have to say. So a lot of times, it is they have not communicated effectively. It’s a matter of them listening to each other.
And in some cases, the lawyers need someone who is third-party neutral to come independently evaluate or give reality checks because sometimes peoples’ expectations are a little bit unrealistic. We can come in and talk about outcomes we’ve seen over the years.
Any case, whether it is a domestic case, a land boundary dispute or personal injury situation, mediation is a great way to solve a dispute.
At Stewart Melvin & Frost, we have a lot of attorneys who specialize in mediation. I specialize in domestics. Tom LeFevre is a veteran business attorney who gets appointed as a Special Master by the courts which is similar to an arbitrator. Mark Alexander, who has a great reputation as a personal injury attorney, facilitates mediation.
Mediation is very popular tool available in our court system and something the courts here value. In other jurisdictions that don’t require mediation, they appreciate the value of it.
Lydia Sartain is a family law attorney and partner with the Stewart Melvin & Frost law firm of Gainesville, Ga.. Her practice focuses on family law including divorce, child custody and mediation.