The definition of mediation is "assisted negotiations." The term "family law" includes such topics as divorce, legal separation, child custody, child support, spousal support, and so on. Therefore, "family law mediation" is when a neutral party sits as a mediator to help two or more people resolve family law issues.
2. "If the mediator is an attorney, does the mediator become my 'attorney of record'?"
No. Even though a mediator may be an attorney, the mediator is not actually meeting with the parties as an attorney. The mediator is sitting as a facilitator. A mediator is "neutral to process and impartial to outcome." As such, the mediator does not "advocate" for either party (like an attorney), nor does the mediator "represent" a party. In fact, it is the party's own contact information that will be placed in the captions on the pleadings filed with the court, since the parties are representing themselves. However, either party may hire a "consulting attorney" to (i) consult with throughout the case and (ii) to review any documentation, including the global settlement agreement, before anything is signed.
3. "Will the mediator issue a ruling on items where we cannot agree?"
No. The mediator is not a judge and does not make any decisions regarding the case issues. Everything in mediation is done by agreements of the parties. In fact, the very first agreement the parties must reach regarding mediation is the agreement to mediate their case. No one can be forced to mediate. Instead, the mediation process is completely voluntary and, as such, mediation can be terminated by either party at any time.
4. "What are some potential benefits to mediation?"
Family law mediation offers many powerful potential benefits. Here are a few: The parties do not go to court. First, this means that the parties (not a judge) can decide the outcome of their case. When a family law case, such as divorce, is placed before a judge, the court MUST apply the law to the parties' particular facts and then issue a ruling. In mediation, other than a few exceptions, the parties can agree to deviate from what they may have received as a judge's ruling...very powerful, indeed. Second, instead of arguing a case in open court (a public forum) where potentially sensitive topics can be discussed, mediation offers a comfortable atomosphere where discusssions may be kept completely private and confidential. Third, many times a litigation case can take many months or even years. If attorneys for both parties are involved, this can get expensive quickly! With mediation, both parties typically share the mediator's costs, and mediation cases are typically quicker than litigation cases...at least at Ginter Family Law. This often translates into fewer fees than what would have been spent if the case was litigated with attorneys for both parties. Fourth, a family law attorney mediator provides two types of help: 1) "substantive" and 2) "procedural." "Substantive" help is helping the parties reach agreements on sensitive and emotionally charged issues, such as custody, parenting time, property division, child support and spousal support. This is the heart of family law mediation. "Procedural" help is the mediator's office preparing the legal forms correctly, filing the legal forms with the court and "serving" the documents. As you can imagine, even if the parties believe they could easily agree on many of the family law issues they face, the procedural help alone is invaluable to ensure that the case is done correctly and pursuant to statewide and local rules. It is for these reasons that our opinion is that, for most family law mediation, a family law attorney should sit as the parties' mediator.
5. "We have children, and I didn't like the decision the mediator put in his/her report that was given to the court regarding our kids."
This was not true mediation. There is a process that used to be referred to as "mediation" that is done through the court system. To avoid confusion, this court process is now called "Child Custody Recommending Counseling" ("CCRC"). CCRC differs greatly from family law mediation, which is what Ginter Family Law provides. First, with CCRC, the ONLY issues discussed is custody and parenting time. With family law mediation, ALL family law issues are addressed, including custody, parenting time, property division, child support, spousal support, etc. Second, with CCRC, the neutral person the parties meet with is a licensed mental health professional. With family law mediation, the neutral person is typically a family law attorney. Third, with CCRC, no one helps you prepare legal documentation to be filed with the court. With family law mediation, the mediator's office typically prepares all of your paperwork. Fourth, CCRC only has a mediation COMPONENT. When the parties meet with a Child Custody Recommending Counselor ("counselor"), in the beginning, the counselor should be trying to facilitate agreements with the parties...that is, the counselor should be attempting to "mediate" the issues of custody and parenting time. However, IF the parties cannot agree on all issues of custody and/or parenting time, then the counselor (in "recommending counties") must issue a report that tells the judge what the counselor feels is in the children's best interest. Then, ultimately, it is the judge who decides whether he or she will adopt all, some or none of those recommendations. This is NOT a confidential process. With family law mediation, there is no "recommending" component to the process. There is only "mediation." The mediator does not issue any recommendations to the court for any items where the parties could not agree. This IS a confidential process.
6. "What is the cost of mediation, and how long will mediation take?"
When it comes to both time and money, these are two items that are almost completely out of the mediator's control. Let's explore why. "Money" is largely contingent on "time." When it comes to "time," there are factors out of the mediator's control. These same factors are typically solely in the control of the parties. First, how well do the parties cooperate? The more the parties can cooperate, the quicker the case typically. Second, what is the complexity of the case? A husband and wife married for only six (6) months with no children, no real property and hardly any marital assets will be much quicker to resolve than a marriage of twenty (20) years with four (4) minor children, millions in assets, multiple pieces of real property, multiple businesses, etc. Third, how risk-averse/risk-tolerant are the parties? On the one hand, you can have someone that is more risk tolerant and this person may not care about valuing certain assets, such as a pension. On the other hand, someone else may want to gather all the information possible to make informed decisions, such as valuing the business, valuing the pension, valuing various personal assets, etc. The latter approach will take more time. Fourth, what type of enforcement is desired with agreements? Typically, the more general an agreement is, the less enforceable it is; and, the more specific an agreement is, the more enforceable it is. For example, saying in a parenting plan "Time with the children will be done as mutually agreed upon" is not as enforceable as "The children will spend the first, third and fifth weekends in a month with Mother." The latter, while more enforceable, takes more time. Given these factors that are largely out of the mediator's control, it is Ginter Family Law's position that providing estimates of time and/or money to prospective clients can be highly problematic and potentially unethical. Therefore, we cannot provide quotes or estimates on time or money.
7. "Do you charge for initial mediation consultations?"
Typically, initial mediation consultations done by web meeting or by teleconference are free. There is a fee for in-person initial mediation consultations and we require a non-refundable advance deposit that is paid via credit card at the time the consultation is scheduled. Call for details. For the initial mediation consultation, we recommend a web meeting since you can see the family law mediator, there is no wasted time or wasted money on gas for driving, and it is free. Additionally, you can determine whether you feel comfortable using the web meeting format for the mediation process. With a web meeting, you get all that you would get with an in-person meeting...just without the hassle of driving. And, since we have multiple locations, that makes two of us.