Frequently Asked Questions

A good question with a wishy-washy answer – “it depends.” If you are ordered by the court to participate in Family Court Services mediation or private child custody mediation, your attorney might be able to participate in the mediation with you, but it depends on what rules your particular County has in place. Many Counties don’t allow anyone but the parties to participate in court-ordered custody mediation. In a full scope mediation involving all issues in the case – not just custody – attorneys are often involved in the process, but are not essential. Many divorcing couples simply work with the mediator on their own, though they may consult with lawyers on any proposed agreements outside of the mediation sessions.

A good mediator should have deep experience with the issues you are facing in your family law matter. But more importantly, a good mediator will model commitment to mediation as a process and will remain optimistic and determined in the face of difficult mediation sessions. Demeanor is very important, and your mediator should generally be calm, reasonable, and empathetic.

Lawyers can play a key role in the divorce mediation process. In mediations that are initiated after a court case has already started, the attorneys can help narrow the legal issues to focus the case on the things that the mediation really needs to resolve, and can provide a “legal roadmap” for the mediator in framing the discussions that happen in the actual sessions. Lawyers that provide representation in mediation should be committed to mediation as a process, and should work with their clients to be flexible and willing to compromise to get the issues resolved.

Good family law attorneys will find the right balance for their mediating clients between a “legal rights” based approach and a more creative “client interests” based approach.

As someone who has litigated almost every family law issue imaginable, I can say with a high degree of confidence that mediation is almost always better than engaging in the court-based process. Here are several reasons why I believe that:

• It is much less expensive. Litigating attorneys charge on a “billable hour” basis, and the time it takes to get a case through the court process from start to finish can be punitive, especially when the case is more complex. And the court system is not built for efficiency. In my experience, the cost of a litigated case – even when the issues are not all that unusual – can easily run from $30,000 to $40,000 to $50,000 before you know it, and without any clear progress or end in sight. Mediation is ordinarily a fraction of that cost.
• It is much more efficient. When you can schedule appointments directly with your mediator, as opposed to waiting weeks or months (or years) for your court to be available, you are saving yourself significant time (and as above, significant amounts of money). Many mediations are completed within a handful of sessions, and the entire process – including the paperwork to get the divorce Judgment – can be wrapped up within a month or two. In my experience, a litigated case will take on average AT LEAST a year, usually 18 months or so, to finalize.
• It is much less adversarial. Mediation is a cooperative process that emphasizes perhaps the one shared goal that both parties can get behind – resolving the dispute and moving on to the next chapter of life. Litigation is a process that forces the parties into conflict and pits them against each other in a high-stress, high stakes, and very public forum – the courtroom. No one wants to be in that courtroom except perhaps the court staff and maybe the attorneys. Mediation requires none of those things and highlights reasonable party-driven resolutions.
• It is private and confidential. Mediation sessions cannot be disclosed in a later court proceeding, so the conversations that happen in those sessions can never be held against the parties. And no one other than the parties and the mediator (and maybe attorneys) are ever involved in those discussions. Family court, on the other hand, is open to anyone who wants to come into the courtroom to watch, and the hearings and trials are a matter of public record for the most part. If you value privacy, mediation is a much better alternative.
• It preserves important relationships. Court divorce proceedings can completely destroy the ability to preserve any kind of relationship between the parties. In custody matters, this can be devastating to the children who need both of their parents to be healthy and present for them after the dust settles. An adversarial parenting battle can all but eliminate the potential for peaceful, productive co-parenting after the divorce is over.

You can expect to get right to the heart of the issues you are facing. The court process can take weeks or months to really get moving in any kind of productive direction, but the mediator can skip over many of the formalities and get started on helping to resolve the underlying disputes almost immediately. Mediation is not a substitute for the court-required paperwork, of course, so the “formalities” will need to be attended to eventually. But mediation can jumpstart real solutions that can be applied instantly.

You can also expect a much less formal process. No need to dress up for court, no need to leave your home and your comfort zone, no need to stress about the process. Mediation is much more of a facilitated conversation than a formal rules-based process. It can happen over email, over the phone, over zoom, or in person at the mediator’s office. It is a very flexible process, and can take whatever form is easiest for the parties.

The mediator is really the “Facilitator.” The mediator is not a decision maker like a judge is, and does not have the authority to tell you how any particular issue will be settled. The mediator will assist the parties in discussing the issues and provide creative ideas or approaches the parties can consider in resolving those issues. A good mediator will know the law, but is not either party’s “lawyer.” The mediator is a neutral whose primary job is to facilitate a guided discussion about how the parties can resolve their issues themselves.

Mediation is less expensive than the court process, it takes a fraction of the time to get the issues resolved, it is completely private and confidential, and it helps preserve relationships between former spouses and parents.

The percentages can vary from study to study, but the general success rate for family law mediation runs between 70 to 85%. The variation may be a reflection of the parties entering mediation at different points in their process – mediations that start right before a case goes to trial, for instance, may be teed up for a quicker more assured resolution, whereas a more complex case that starts in mediation before any of the issues are really fleshed out may take a bit longer and may be less certain to resolve completely.

But a success rate of even 70% is excellent, and certainly supports giving mediation a try before committing tens of thousands of dollars on litigation.

The first mediation session will focus on identifying the issues that need to be addressed in the mediation process, and on developing the plan of action to get those issues out in the open and resolved.

The mediator will also typically describe how the process works, any particular stylistic approaches the mediator likes to use, and will set the expectations of the parties in terms of documents to be shared and information to be provided so the mediation can be productive. The mediator is also likely to discuss the frequency of sessions and scheduling issues so that the process does not get bogged down, and may also want to discuss “ground rules” for behavior and engagement.

It is not unusual for the first session to be more conceptual than substantive, but setting the mediation up in this way helps it be much more productive in later sessions.