Mediation of Family Disputes
Hon. Richard Bennett (Ret.) is a full-time neutral with JAMS and previously served on the Napa County courts for 21 years, including three years as assistant presiding judge of the superior court.
Mediation is beneficial in family law cases, where custody and children’s visitation arrangements are in dispute. There is a growing trend to utilize ADR tools in dissolution actions involving individuals with greater wealth. However, these tools have been less widely used to resolve the thorny and emotional issues surrounding identification and distribution of property in lower total value dissolution matters.
Familial dispute issues are often extremely personal, and most parties do not want private family disagreements and the value of their estates discussed and explored in an open courtroom. If the family wealth involves an operating business, there is risk of damage to the business if the problems are publicly aired. Mediation alleviates all of these privacy concerns and allows family members to make their own settlement decisions.
Mediation reduces the time it takes to resolve property and family wealth disputes. Mediation’s relative lack of time constraints allows for active and productive negotiation, reflection and more reasoned decision making. Mediation has often proven a less expensive option to the courtroom.
Mediation suits contentious situations particularly well because they can generally be resolved more quickly with less financial and emotional costs, and statements made during the mediation are protected by the mediation privilege. The setting for family law wealth mediation is much less overwhelming and intimidating than the formal courtroom. Mediators can be essentially “on call” to assist the parties after the mediation session.
Pre-Session Conference with Mediator
Once the decision to mediate has been made, it is essential for counsel and client to be fully prepared. This preparation includes pre-mediation contact with the mediator because such contact is important to the ultimate success of the endeavor. Pre-mediation conferences serve to familiarize and focus the mediator’s various issues.
Strong consideration should be given to engaging in a joint opening session. Often, due to the complex and dynamic family relationships involved, more damage may be done in a joint opening session than any benefit that may be conferred.
Preparation for Mediation
In anticipation of the mediation, the attorney must have full command of the facts, should advise the client of the need to know everything about the case, and must ask the client to respond candidly and completely, without value judgments as to what is or is not important. The client should be apprised of what may occur during the mediation. Efforts to determine the client’s emotional situation and economic realities are vital to success.
Mediation is an attractive and proven process that litigants and counsel should consider in order to resolve disputes in the emotional areas of family law and the distribution of family wealth. Compelling reasons to mediate include a shortened time to resolution; increased privacy and confidentiality; potentially less cost; the freedom to choose a mediator with skills and experience appropriate to the case; and the freedom to decide for themselves the outcome of the dispute.
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