Mediation is a form of alternate dispute resolution (ADR) commonly used in divorces and family law cases to help the parties decide how to resolve their issues outside of the courtroom. The mediator is a neutral individual who does not represent anyone and no interest in the outcome. Parents must also remember that mediators have no authority to give legal advice or make binding decisions on the parties (as may be the case in arbitration, which is not commonly used in family law situations). An agreement (full or partial) can only be obtained through the mutual consent of the parties, which is placed in writing during the mediation process.
The mediator’s role is collaborative, not adversarial. He or she is present to help the parties by promoting constructive dialogue. The lawyers are present to help the parties achieve realistic goals. The clients are present to negotiate in good faith. This includes a duty to take reasonable positions that may be justified with exhibits and/or other information. The clients may feel free to bring someone to mediation for moral support. The clients, their attorneys and the mediator shall conduct themselves courteously. This includes a duty to listen to other points of view for the purpose of understanding that point of view and to repeat what has been said for clarification.
Mediators generally have the parties and their attorneys sign a mediation agreement prior to the negotiation process. The mediator is usually paid a set fee that is divided between the parties at the conclusion of the session. The mediation process can be a less expensive and more efficient way to resolve disputes than allowing the litigation process play out in family court.
The mediator usually begins a session by speaking with all the participants together. Thereafter, he may conduct mediation face to face or suggest that opposing parties and their attorneys retire to separate rooms. The mediator can then move from room to room to meet privately with each party and his or her attorney. Clients should speak freely and honestly to the mediator and may take comfort in knowing that the mediator will keep confidential that which he instructed not to disclose.
Mediation is generally dictated by the local rules of Court, such as in Jefferson Family Court in Louisville, Kentucky. What transpires in mediation is not admissible as evidence in the courtroom. The only exceptions to the rule of confidentiality are the obligations imposed on the mediator to report abuse as required by KRS 209.030 and KRS 620.030. Except for private sessions with the parties and their attorneys during the mediation process the mediator shall not communicate ex parte with the Court, the parties or their attorneys.Mediation may not be appropriate or ordered in certain cases, such as where there has been domestic violence (EPO or DVO) between the parties. Parties should not confuse this process with therapy or counseling.
The mediator, either party, or their respective counsel may request at any time, without prejudice, that mediation stop. Likewise, future mediation sessions may be scheduled by mutual agreement of the parties, their attorneys and the mediator. The mediator shall report the results of mediation without comment to the Court and the Family Court Administrator.
Our family law attorneys at Goldberg Simpson are experienced in guiding you through the issues of divorce, legal separation, child custody, or support and maintenance issues.