Most people think mediation is a cooperative process where everyone sits around a table and calmly resolve all issues in the dispute rationally and with dignity.

In Family law?

Not quite.  In fact, family law mediations are so contentious that the parties cannot even be in same room.  Much of this animosity is caused by the justice system. Why would anyone think that the best way to resolve a family conflict was with an adversarial dispute resolution process: the Family Court.  Are we not looking for trouble?

When a family starts a divorce or separation process with a cooperative/collaborative process, the matter rarely ends up in mediation.  To the virtually all adversarial cases in the family court go to mediation.  In fact, mediation is required to occur prior to any trial being requested.

Why is this?  Easy.  An adversarial case often begins with salacious, and sometime untrue, allegations being made by the parties against each other in an attempt to "win" a lawsuit.  The problem is you can not generally "win" a family law case- at the end of the day, the lawyers, guardians and judges will all be gone, but the two parties and the kids will still be a family.  It's unlike any other case.

So the role of the mediator in these kinds of cases is to view the case "from above"; as a neutral trying to find peace, but also weighing in on the legal aspects of the parties' claims and defenses.  Sometimes the parties are so angry with each other that they literally cannot see the forrest for the trees.

I recently had mediation that came down to an amount of child support being either $500 or $690 for 6 months.  The lawyers were dug in and both parties were determined that the the law and facts were on their side, and they both had good points.  As a neutral I was not invested in either position and I saw this as simply $190 x 6 months or $1,140.  I also knew that the parties were spending $900 per hour to argue about this in mediation.

They split the difference and settled their case!  They were unable to see the forrest for the trees and were locked in a bitter struggle for "rightness".  As a mediator, I was able to quell their passions enough to get them to see the silliness of their respective positions, but this kind of thing is typical of a domestic relations dispute.  Passions often control the day, and a good mediator needs to stay above the fray.

I hope you find this helpful,

Guy Vitetta

Charleston