Expect the Unexpected in a Family Law Mediation

By Victoria Calebrese
July / August 2016

“Both parties come up or down to the same level of insanity during a divorce.”
Author unknown

Divorce, paternity and other related family law matters can be an “insane” time for most couples. In all family law matters, mediation is required prior to a temporary relief hearing and also prior to trial. Thus, in a Family Law matter, the parties get two attempts to resolve the issues amicably at mediation. There are some unique aspects in family law mediation. This article will address some of those nuances.

Separate Caucuses

Family law mediations usually start and end in separate caucuses (rooms).  Seldom will the parties and their counsel begin together in one room, not even for the mediator’s opening statement. Most parties do not even want to see the other party before, during or after mediation. There are times when one party and his/her counsel will wait until the other party has left the building before they exit from their mediation room.

Non-party Participants

Since in most family law mediations parties are separated from the inception, the parties may not be aware of any non-parties who are in the other room. There are times when a parent of a party or a new spouse or significant other attends the mediation and wants to be a participant in the mediation process. Per the mediation statute and rules, unless the opposing party agrees, the non-party participant cannot be present in the caucus. The non-party participant can remain in the waiting room outside of the caucus. Depending on whether the non-party participant is perceived to be a positive or negative influence, the opposing party may agree to permit them to remain in the room and participate in the mediation, especially if it will assist in the process.  There is no way of knowing definitively if a party calls, texts or emails a non-party participant during the mediation caucus for advice. This is difficult to stop, but often occurs when a party wants advice outside of the caucus. A way to avoid this dilemma is for the attorney, if he/she is aware that their client is bringing someone to the mediation, to call opposing counsel prior to the mediation and seek the approval of the opposing party. This avoids surprise on the day of mediation and also limits further escalation of emotions and saves time.

All or Nothing Approach

In family law mediations there are generally a number of competing issues which can become inextricably intertwined. Some attorneys take an “all or nothing approach”, while other attorneys will agree on some issues; such as equitable distribution and have the remaining issues tried before the Court.  Settling some issues will decrease attorney’s fees and costs but, on the other hand, some parties want a “whole package approach” so they do not feel that they have conceded on one point when there are remaining unresolved issues to resolve.

Commonly, in family law mediations, most parties take the “all or nothing approach”. Looking at the “whole picture” does have its advantages in family matters. Most of all, this approach creates finality.

Lack of Financial Information

Parties are not able to come to a resolution at mediation if there is a lack of financial disclosure. If the parties’ incomes are at issue, (particularly a self-employed party) or the value of a business is at issue, and limited documentation has been provided to opposing counsel prior to mediation, agreements are usually not reached in the mediation.

Even though further discovery may be necessary to reach an agreement at mediation, each party can become educated as to the legal positions that the other party is formulating or will present to the Court.  Thus, even if the parties attending the mediation do not have sufficient discovery to come to an agreement, the mediation is still a successful tool to define issues, narrow the issues and to determine the weaknesses and strengths on each side of the case.

Wanting Your Day in Court

Sometimes there is no agreement at mediation simply because a party wants their day in Court.  He or she wants the judge to hear their story and tell the judge how terrible their spouse has been in their relationship or how they have been wronged.  The emotion overcomes logic.  As in non-family law mediations, a cost benefit analysis is performed by the attorney as to what the attorney’s fees and costs would be to go through a trial versus what the chances of success will be on certain issues before the Court. Despite the fact that the cost to litigate an issue may be greater than the chances of success this will not deter some clients from taking the matter to trial.

Thus, the level of “insanity” of a party plays an important role in the mediation process wherein each attorney, as well as the mediator, needs to expect the unexpected in family law mediation.