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Monday, August 26 2013

The most popular mediation model in Wake County is mediation with at least five people: husband and wife, their attorneys, and the mediator. Because this type of mediation is typically held over the course of one day and lasts until all of the legal issues are resolved, I like to call this type of mediation a mediated settlement conference. This model has many advantages and works well for families who have fully explored all legal options with their attorneys, but are unable to reach a full settlement with attorney negotiation. The goal of a mediated settlement conference is to reach agreements on all legal disputes. Typically, at the end of the mediation, the parties sign off on all terms of the agreement so there is finality to the resolution of legal disputes. Paying for a mediated settlement conference can be expensive, but it is most often effective.

There is another mediation model that has different costs and benefits, but is especially effective for family legal disputes. This model is the one used by The North Carolina Custody Mediation Program where the parties attend the mediation session with the mediator, but their attorneys are not present in the mediation.

Because of my skills as a clinical social worker and my experience as an attorney and court manager, I prefer working with clients in this type of mediation. I have seen the benefit of parties learning new skills, information, and strategies in mediation that has helped them far beyond the resolution of their immediate legal disputes. This model is much less expensive per hour which allows clients to use these financial resources to invest in multiple mediation sessions. When clients work together over multiple mediation sessions to discuss family conflicts and legal disputes, they are often able to achieve a new foundation, or baseline, for their relationship that enables them to better co-parent their children and adjust to the financial realities of establishing separate homes.

Like mediated settlement conferences, clients in this mediation model still focus their efforts on resolving their legal issues. However, it has been my experience that with family legal disputes, there are often other issues fueling the conflict that are not "legal" in nature and might be irrelevant in a court of law. In mediated settlement conferences, the mediator often gives each party ample time to talk about, or vent, non-legal issues. But this venting process is often done while the parties are in separate rooms from each other. When parties are together in a mediated settlement conference, often their attorneys try to get them to focus on only the issues that would be relevant to resolving the legal issue in court. In mediation without attorneys present, clients are often able to fully discuss important issues for them which can contribute to better outcomes for their future relationship. For example, a spouse might be having trouble agreeing to how certain marital property will be divided because of the other spouse's marital misconduct such as infidelity. If the parties were in a trial before a judge on the legal issue of equitable distribution, by law, non-financial marital misconduct is not a factor that the judge can consider in dividing the marital property.

Some might think that a disadvantage of this approach is that the agreements reached are not final. However, not reaching major decisions about your finances, property, and children on one day can actually be an advantage in many situations. Clients have an opportunity to take time to talk independently with their attorney as well as think about, and live with, interim agreements. This time can focus the clients to build on small successes. The accumulation of small successes can lead to full settlement and often prevent families from going down the high-conflict, adversarial path in court. When family members are at different points in their readiness to resolve legal issues, taking extra time to contemplate settlement can often be more productive than calling it quits and just letting time pass waiting for a trial before a judge. Getting a trial by a Wake Family Court judge takes time. Court dockets are overcrowded and the wait times are very long. And while this wait time often allows the majority of parties to settle their issues before the actual hearing, there is a big difference for the parties in the passage of time spent working together to resolve the issues or waiting for one's day in court. Setting an intention to work for settlement over litigation can be a much more powerful and healthy motivation for clients than spending one's time contemplating how the other will be defeated in court.

This being said, it is important to note that if your family legal issues are already in court, then you might be forced into trial (or you can force the other person into trial) because of the family court timelines. When parties and their attorneys decide to file lawsuits, they must comply with court management efforts to move cases as efficiently and effectively as possible. Therefore, clients who are not ready to resolve issues on their own, can be forced into trial where the judge will decide the issue for the family. If you think mediation would be beneficial for you and you already have a lawsuit filed, you need to enter mediation as soon as possible to use the wait time for trial in a productive manner.

Another hesitation some people have about this type of mediation is that they believe it is blurring a line with therapy. Most often, a mediator who engages in this type of mediation has at least a master's degree in a helping profession such as social work or counseling. While the mediator has this background, that does not make the mediation therapy in the traditional sense. However, it does allow the mediator to use the best of her therapeutic skills to coach the parties through their conflict.

As a clinical social worker, family law attorney, and court administrator, I bring all of my skills, knowledge, and experiences into each mediation session. I highly recommend this type of mediation for parties (1) when they are considering separating or have recently separated, and (2) when they have become so embroiled in their legal conflict that they are at the end of their rope and well beyond their allowable budget in attorney fees.

Posted by: Alisa AT 01:22 pm   |  Permalink   |  0 Comments  |  Email
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    Alisa Huffman, MSW. JD, and Blair Biser, JD, are licensed to practice law only in the State of North Carolina. The materials included on this web site are not intended as legal advice. No attorney-client relationship is formed by the use of the information from this site or the links from this site to other servers.

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