Role of Mediation in Family Law Disputes
Mediation is a popular technique for helping family law litigants resolve disputes outside court. South Carolina believes mediation should play a significant role in most family law cases, so the courts usually require mandatory participation. Many people have no idea what mediation is or why it might be helpful.
At Surasky Law Firm, we have direct experience with mediation in family law cases. We know how it can help break logjams and get people on the same page of a family law dispute like divorce or child custody. In this article, we provide more insight into the role of mediation and encourage you to reach out for help with your family law case.
What is Mediation?
Any legal dispute can be resolved voluntarily. However, people often struggle to listen to each other and find common ground. Suppose you are going to divorce. If you and your spouse could agree on custody and how to divide marital property, then you could divorce much quicker. Where agreement is missing, then a judge needs to settle all issues.
Mediation involves each side meeting with a trained mediator. This person is not a judge, and they don’t represent either side. Instead, their job is to facilitate discussion and try to resolve disputes.
By talking about the dispute, each side can begin to see what the areas of disagreement are. You might also begin to propose and mull over possible solutions. The mediator helps facilitate this discussion and might propose solutions to a dispute.
Suppose you are locked in a child custody dispute. The mediator might listen to each side describe what they want in a parenting plan and then come up with a proposal that meets some of each parent’s needs. You can then talk it over and tweak it. By acting as a neutral third party, the mediator can help each side come closer to agreement.
What Does the Mediator Do?
The mediator provides a fresh, neutral perspective on the dispute. Typically, a mediator has substantial experience in family law. This person will know how a judge will likely view the dispute if you go to trial. Relying on their experience, the mediator can offer frank advice on how to solve the dispute.
If you can reach an agreement, then the mediator can help draft an agreement, which each side will sign and submit to a judge for approval.
Is Mediation Mandatory in Family Law Cases?
Usually, yes. Rule 3 of the South Carolina Rules of Alternative Dispute Resolution states that litigants in contested family law disputes will go to mediation. We typically end up in mediation for divorce and child custody cases.
Mediation is held at some point after the divorce petition is filed but before a hearing. You might have more than one session, especially if you are making progress.
Although participation is mandatory, you are not required to accept any suggestion from the mediator. As mentioned above, the mediator does not act as a judge and does not choose a “winner.” They can offer suggestions, but you can always walk away and insist on going to trial before a judge.
Selection & Payment of the Mediator
Each side can agree to jointly select a mediator, or the family court judge could appoint someone. If there are language barriers, then make sure you choose a mediator who speaks your language.
When it comes to paying for their services, a different rule (Rule 9(c)) states that a mediator’s fees are divided equally between the parties, although you can reach a different agreement. Don’t let your spouse unilaterally choose the mediator, even if they want to pay. You should have input into who you choose.
Talk with a family law attorney. We know many of the most common mediators in Aiken and surrounding areas. We can steer our clients to a mediator who is fair.
How to Get the Most Out of Mediation
We have seen first-hand how mediation can help spouses who are squabbling as part of divorce, separation, or child custody disputes. If you can resolve a dispute in mediation, you can save time and money.
The best way to prepare is to:
Spend some time thinking about what you want. If you are fighting over custody, write down your ideal child custody arrangement. You are unlikely to get it, but writing down your objectives will provide a starting point for negotiation.
Try to stay positive. You won’t get anything out of mediation if you have a defeatist attitude.
Ask your lawyer to attend. Your lawyer can help you think through the mediator’s suggestions and make counteroffers. A lawyer can also provide emotional support.
Mediation is not always successful. But you should try to get the most out of it. Sometimes, people can resolve even one small issue, which can save time when it comes to a divorce. If you can solve the entire dispute, then you might be in a better position to follow through with a parenting plan.
Why Mediation Fails
We have also seen people fail to participate in good faith. At heart, mediation involves some give and take. You and your spouse are disagreeing for a reason. If either side takes a “my way or the highway” attitude, then mediation will fail.
In family law disputes, each side will be in their own room, and you won’t see each other. That should help reduce the temptation to vent. But there’s no point in trying to “win” the mediator to your side by complaining about your spouse because he or she doesn’t “decide” any issue. All the mediator can do is suggest ways to resolve the dispute. You won’t gain any leverage by trashing your spouse’s reputation to the mediator.
Speak with an Aiken, SC Mediation Attorney Today
Family law mediation has changed the way disputes work their way through the legal system. Once upon a time, each side would dig in and fight for years, especially over custody. That approach could bankrupt people, and we are happy to see mediation take a greater role in family law disputes. Still, no one should go into mediation blind. Instead, you need to prepare with an attorney. Contact Surasky Law Firm to begin.
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