If you’re in a family law dispute with your former partner, at least part of you knows that it’s important to try to settle things quickly and efficiently. Of course, when emotions run high it can be tempting to take every single issue to court, and try to inflict both emotional and financial pain, but in truth that’s not the way that works.
Our legal system always seeks to resolve disputes well ahead of them seeing a courtroom, and family law is no exception. That’s why in the family law context, mediation can provide an avenue to reaching a speedy resolution. A mediator is a neutral figure focused on helping both sides cut through the emotion, and focus on what really matters.
Yet if you are going to engage in a family law mediation, speak with a family lawyer first. You don’t always know what you don’t know, and in this context what you don’t know could become costly.
What does mediation look like?
In mediation, both parties are agreeing to work with a mediator, who is a neutral third party, to try to resolve all (or at least some) of their issues. Family law mediators are trained professionals who understand some of these issues well, and are trained in how to help bring parties together to find an acceptable middle ground.
Some family mediators may be family lawyers themselves, but mediators are not required to be lawyers. They will, however, make an assessment of the power imbalance in the relationship. If one partner holds the bulk of the financial leverage, for example, and is trying to use that to extract concessions from their former partner, the mediator will address that right away. Similarly, if there has been any history of domestic violence, the mediator will screen for that and work to ensure that mediation is a fair and safe process.
Every mediator will take a different approach to resolving issues. Some may apply a gentle touch when working with parties, and others may be more evaluative – focusing on the numbers as a way to bring parties together logically. Some may prefer to work in person and bring the parties together for an opening session before decamping to separate rooms, and others may work entirely virtually over Zoom.
The crucial thing to remember is that while your mediator may be a lawyer, they are not your lawyer. They are not there to provide legal advice to either side, or to give their own ruling on how things should be divided. Rather, if one party is looking to pay one amount, and their former partner is seeking something higher, the mediator can paint a realistic picture of the costs of litigation, and why it might make the most sense to split the difference and settle.
Mediation is a confidential process, which allows everyone to think and behave more freely, and explore ideas that may be more challenging in a courtroom. At mediation, you are effectively still in the ‘driver’s seat,’ and you are not forced to accept any proposed resolution you do not want to.
So why is it so important to have a lawyer in your corner through the process?
The benefits of legal advice during mediation
Occasionally we’ll hear of clients who have attempted to go through the mediation process voluntarily before seeking legal advice, which is always a dangerous move. You may have the best of intentions and are hoping for a quick resolution while trying to save money. The reality, though, is that you don’t always know what you don’t know.
You have certain rights and obligations through the family law process, including in mediation. Some of these obligations are required by law, such as child support. However, attending mediation without legal advice means that you may feel pressured to negotiate away other things that you may otherwise be awarded in court.
For example, you may be negotiating over the value of property, or a business. While each of you may have an estimation of the value, those estimations may be greatly off from reality. A family lawyer would likely advise bringing in a trained valuator, especially if you’re seeking to know the value of a business, so that you can negotiate from a place of knowledge vs. guesswork.
Your lawyer is there to know your case, and advocate for your best interests. They may have a strategic approach to mediation – knowing where you may be willing to make concessions, and what will be an absolute non-starter. They are also there to remove emotion from the process. Making emotional decisions, while understandable in a contentious family dispute, may lead to agreements that you regret soon after.
How we can help
Parties may try mediation before seeking legal advice because they think they’re being polite, or helpful, or that seeking a lawyer will lead them down the road to expensive and lengthy litigation. This is not necessarily the case. As family lawyers, our goals are your goals, and we take our instructions from you. We are here to advocate for, and help protect your interests.
Our family lawyers are experienced in all forms of dispute resolution, including negotiation, mediation, arbitration, and litigation. We provide our clients strategic advice about the best ways to reach their goals, and the potential likelihood of any outcome. Family law can be scary, but we’re here to guide our clients through the process. Contact us today to set up a consultation.