Mediation
Family Court Mediation
Parties to mediation should:
- Provide all information and Legal concerns. Think about logistics, any allegations made, pending court proceedings, and any potential compromises in working with opposing side.
- Consider a pre-conference meeting, a conference call, or individual meetings with clients before meeting together to screen imbalances, to anticipate issues, and to establish rapport.
- Make certain the mediation room is properly set up before clients arrive to provide a comfortable and distraction free environment.
- Bring a checklist for yourself to the mediation- for materials, points to cover, special circumstances- to assure yourself nothing is left to chance.
- Before mediation of the case begins, make certain that you understand the mediation agreement and the process.
- Before mediation of the case begins, be sure you have a complete understanding of the logistics of settlement agreements and relations to the judicial process.
- Ask questions, and be willing to engage in participation and effort in mediation, compromise is the key to a successful resolution.
What Is Mediation?
Mediation is a private, confidential decision-making process in which an impartial mediator, assists disputing parties in structured negotiation. All decisions are made by the participants. The mediator does not make a binding decision, but will help the parties reach a settlement. If mediation fails, the parties are free to go to court.
Mediation offers a way for parties to negotiate because an objective mediator can keep the process moving along in a more informal environment. That does not include the rules of court.
What to know before Mediation:
- It is a negotiation process.
- It is private and informal.
- It emphasizes problem solving.
- It is Mandatory in South Carolina
- The participants must agree and with help craft any agreement that comes out of mediation.
- If mediation fails the parties may still go to court and ask the judge to make a decision.
The parties are kept separate in their own conference rooms, and negotiate with the mediator going back and forth attempting to reach a settlement of the Family case that the participants can live with.
The mediator is an impartial third party to help them in settling the family court litigation. The mediator helps parties toward a compromise of the parties’ issues, settlement options, and terms of agreement.
In Mediation the parties DO NOT present testimony, physical evidence, or make legal arguments to mediator. Mediation is less formal than court proceedings and helps parties with limited fuds avoid a costly family court trial.
In mediation the parties engage a certified mediator whose role is to mediate a dispute and, if no agreement is reached, then to shift the process to a family court judge.
Mediation allows the parties to:
- To save time and money
- To stay out of court
- To come to an agreeable settlement
- To control decision-making
- To obtain closure.
Mediation, an Alternative Settlement Process
Most court cases are resolved by settlement or dismissal, not by decisions of judges. The negotiations are conducted through attorneys, who are advocates for the parties, who gather and review information and make recommendations to clients based upon applicable law and projected outcomes at trial. Parties are often advises not to talk to each other. Negotiations are results-oriented. Advocates typically emphasize or exaggerate their client’s strong points and the short-comings of the other parties. Little attention is given to the contin ing relationship of the parties in most legal negotiations or in court proceedings.
Mediation offers an alternative to traditional negotiation of settlement through attorneys. The mediator’s role in negotiation is critical as The facilitator role is familiar, the role of context creator less so. Since many people who use mediation will remain in a relationship, the mediation must be more than a decision making process. Because conflict is experienced and must be resolved at cognitive and emotional levels, the context of the negotiation is very important. It is not the decision that determines whether the parties feel the result is fair. It is the decision and the way the decision was made.
The Mediator must create an atmosphere or context of trust where all participants sense that they are heard and that the other side understands their communication. The parties bring with them the c ntext of the conflict, the climate of their relationship and history of their case, which the mediator will attempt to acknowledge and understand.
It is not only what the mediator does but the authenticity of the mediator and the way the mediator works with parties that affect the quality of the outcome for parties. The context of trust, fairness, and party control over the outcome leads to party satisfaction in terms of the quality of justice, the relationship between the parties, and the outcome of the mediation process. Often the process is more important than the outcome.
Understanding The Mediator's Role and Authority
The Mediator's Role
- Creating an environment conducive to problem solving.
- Assisting in principled listening and principled speaking.
- Assisting in identification and clarification of underlying interests and issues.
- Assisting in the development of a common database.
- Stimulating meaningful negotiation/problem solving.
- Facilitating the process by helping parties analyze alternatives.
- Ensuring that parties reach settlement on their own volition.
The Mediator's Role
The mediator has authority to stop the mediation. However, parties must mediate a minimum of Three (3) hours and processes but no authority to make decisions for the parties.
Since it is Mandatory, the parties must engage in the process. In family mediation parties expect and mediators generally provide information about family law, divorce, and the legal process.
In Mediation, the mediator actively advises and recommends solutions to the parties regarding their decisions. By taking responsibility for the outcome the parties have an active way to craft the outcome of their case.
The family court mediator will still require the ultimate decision making to rest with the parties. This is done by actively laying out possible outcomes and reminding the parties that they must see value in their selection, and voluntarily choose the outcome.