This top divorce litigator highly recommends mediation, but for reasons most of us won't talk about:
September 14, 2015
It's really refreshing to hear Atlanta divorce lawyer Randy Kessler say why he thinks mediation is "wonderful" and needed in almost every family law case that is in contested litigation or heading for it. ("High-Conflict Cases: Q&A with Randall Kessler" on familylawyermagazine.com, 9/1/15)
For me, just like for Randy, actually working as a neutral Mediator is just the tip of the iceberg. I act as a mediator in family law cases, but almost as often, I represent one person as their lawyer in a mediation that involves lawyers as well as clients and the neutral mediator. Even more often, I counsel clients who are in mediation on their own. I help them review their written agreements and their personal and legal situations before they finally sign a contract settling all the issues between them and their ex. But far more often than that, I help people through divorce and other family disputes as a negotiator and drafter, as a litigator, or in Collaborative Law, which combines the conflict-resolving techniques of mediation with the things that mediators cannot provide but lawyers must: complete, frank legal advice; loyalty and fidelity to the client's goals and interests; and advocacy which makes sure that clients' views are heard, that their interests and concerns are carefully and adequately considered in the process, and that before making any final decision, they have enough time, information, advice, and are in a mental and emotional state to understand and make such life-changing decisions safely.
I'm not a touchy-feely "new age" or "granola" mediator or lawyer, so I have always really liked Randy's style. He mentions one virtue of mediation that I always thought was necessary and should be recognized and developed, but which went against the purist therapeutic, facilitative, non-directive ideal of mediation which I was trained in over 20 years ago. Many people in disputes want, and need, to make their case for justice, as they see it, to someone who represents their community (however they define it), and/or an authority figure, or at least to someone who will understand their situation, and whom the other party will have to respect and listen to. I always thought of this aspect as "A Mediator is a Person in Your Neighborhood."
Here's the mediation part of Randy's interview:
Let’s be clear that I'm a litigator who also mediates. I did get trained 20 years ago as a mediator and I do serve a few times a year as a mediator, but I'm an advocate and often hired because people think they need to litigate.
Sooner or later, people will understand that mediation is almost inevitable in any divorce case. It's a wonderful process and it's almost necessary in every case, except when there’s domestic violence or it's clear mediation won't work. It is worth trying for so many reasons and that's why I recently wrote a book on mediation and how I feel about it. If done properly, mediation gives you a chance to settle the case, save the aggravation of litigation, and prevents you from hearing the unkind words of your spouse on the witness stand that will ring in your mind forever. It’s invaluable if you can solve the case without litigation.
There are additional secondary and tertiary benefits to mediation. You may learn something about your opponent's case that makes you re-evaluate your case, or you may learn something about your own client and realize they can't stand up to the other side. For example, if your client falls apart when the other side is present, you cannot go to trial. You may learn that the other lawyer is brilliant or not so brilliant. Maybe the most important point is that mediation allows your client to have a brief catharsis and say the things that many people feel they need to go to court to be able to say. While it might not matter to the judge what your client’s ex-spouse did to them, it matters to the client and they may not be able or willing to settle the case until they've said it to somebody besides their attorney – somebody neutral like a mediator.
Mediation and litigation are not mutually exclusive. They’re part of the process. Most judges require or urge mediation if for no other reason than they know it will reduce their calendar. If half of the cases that go to mediation can settle, there are 50% fewer cases that the judge has to handle. More than 50% of cases that go to mediation in domestic cases do settle.
Mediation is a wonderful tool. When I first started, I remember lawyers saying that they didn’t need a mediator to help settle their cases; however, fewer clients felt like they'd had their chance to speak. I could talk about mediation for hours, which is why I wrote a book on it. ...
From: "High-Conflict Cases: Q&A with Randall Kessler" on http://familylawyermagazine.com, 9/1/15.
Randy's point is excellent. This is why I recommend the seven court-less alternatives to the traditional courtroom divorce to all of my clients... but mediation and collaboration top my list. I have said for years that these clients can say what they need to say, they can get "their day in court," if you will, which they NEVER WILL in court!
Posted by: Joryn Jenkins | November 15, 2015 at 10:46 AM