Over more than thirty years I have handled multiple types of family law cases involving divorce, modification of prior divorce agreements, violations of divorce agreements, custody, and child support matters. During that period of time, I have handled literally hundreds of divorce cases. Some of them have involved child custody and visitation questions, complex and high priced asset evaluations, and even questions regarding visitation and exchange of property. While others were less complicated, some have been highly contentious and others have been more amiable.
I have tried numerous cases involving all of the above issues over the last thirty-plus years, to include cases which have gone all the way through and including a jury trial. Georgia is one of the few jurisdictions that still allows jury trials in a divorce case.
It is based upon my many years of experience and the hundreds of divorce cases and divorce clients that I have represented, that has lead me to believe that there are better ways to resolve disputes than in front of a jury or a judge. While I am highly qualified and experienced to try either, it is my opinion that after watching the aftermath and the cost and expense, both financially and emotionally, in a long protracted divorce, the best method of resolution is through some alternate dispute form, including mediation or some other process, which can lead to a conclusion or settlement short of a trial.
The law has come to refer to this as “Alternate Dispute Resolution” (“ADR”). ADR involves both the process of mediation and in some cases collaborative law or arbitration. But, what do these terms mean?
The first of these, is collaborative law. In a collaborative law process, both parties participate with counsel, and all parties involved agree that there will be full cooperative disclosure of all assets, income, and liabilities, without necessarily formal discovery. This is the key to this process, and the key to any process which results in an ultimate settlement short of a trial. The short comings of collaborative law is that both the parties and their counsel have to agree that in the event that the collaborative law process fails, neither attorney may represent those parties in on-going litigation. As a result, many people and their counsel are not comfortable with the collaborative law process because it would involve, if it fails, re-educating a new lawyer regarding the case and additional expenses relating to that.
The second method, and probably my favorite, is the process of mediation. Mediation does not involve an individual who makes a decision based upon the presentation of evidence. Mediators do not make decisions or judgments. They are facilitators. The Mediator is an objective third party, usually jointly selected by the lawyers and their clients, who meets with the parties on one or more occasion, reviews the assets and liabilities of the parties, identifies issues regarding the children, if there are any, and basically tries to frame the issues for both parties from an objective point of view. The Mediator provides a service by pointing out to both parties the strong and weak points in their cases, the likelihood of achieving success, and the risks of a trial. The mediator uses what is often referred to as a “shuttle form” of diplomacy in a mediation session. This could involve more than one session, but generally is successful in one session. These sessions may last four hours, or may last eight to ten hours, but experience has shown over the last fifteen to twenty years that the great lion’s share (probably 85%) of divorce cases never reach a court room, nor should they. This is because it is preferable to have a Mediator help move the parties closer to a middle ground resolution, putting the parties in control of the division of assets, the visitation issues, the child custody issues, alimony and child support, as opposed to letting a third party in a courtroom setting, whether that be a judge or a jury, decide their future lives for them.
The mediation process is particularly beneficial where there are moderate incomes and assets so that the legal expenses on both sides do not deplete the parties resources, but they still reach a final equitable result.
Another benefit of mediation is the fact that there is no public “blood letting” or painful emotional process which often occurs in a courtroom setting. The Mediator is not someone who makes an ultimate decision as to the issues but attempts to work with the parties either one-on-one in a caucus situation or in joint sessions to bring some reality testing to each of the parties’ expectations. This is helpful to both the client and the lawyers since the mediator has no real financial or other interest in the divorce and can provide insights from a third party point of view that are extremely helpful to both counsel and the parties. This process is both quicker and is less expensive than a full-fledged litigation effort which ultimately involves a trial.
A mediation can be done without a third party Mediator, when the parties and their counsel are able to meet at one of the lawyer’s offices and exchange both documents and concepts. However, in my experience, it works best when a qualified third party Mediator, who has worked with domestic cases before, is involved.
The third possible alternate dispute resolution category could be arbitration, which is short of a courtroom, but does represent similar aspects of a courtroom in that evidence is presented, witnesses are called, and ultimately the arbitrator makes the decision. It is for that reason that I place arbitration in the third category, since again it takes the control away from the parties and places it in the hands of a third party arbitrator.
If you have read in this blog that I favor mediation in divorce cases, you are correct. Let me further say that the mediation process also works extremely well in disputes involving estate matters, commercial business and litigation matters such as partnership and shareholder disputes, and very frequently other kinds of general civil litigation where the parties have become polarized but the cost and expense of going forward can exceed the benefit.
Ask us about the mediation process and how it can benefit you and your case. The attorneys at Jacobs & King have conducted numerous mediations, most of which have been successful. Mediation should always be considered as an option in any sort of civil litigation, but particularly in the highly personalized area of family law and domestic relations in general.
Cary S. King, Esq.