Accessing Justice and Taking Control of Your Case

Judge Tusan's article was written for the American Bar Association's Mediation Week 2020 and is currently being showcased on the association's website. https://www.americanbar.org/groups/dispute_resolution/events_cle/mediation_week/

Because the court system has been largely shut down due to the pandemic, parties should be motivated to resolve their disputes themselves in a litigant-friendly setting such as a domestic mediation. Only constitutionally essential or emergency proceedings are currently taking place. All other cases have been postponed until the courts can safely resume operations and reconfigure their public areas to follow social distancing guidelines. While in-person adversarial hearings in divorce and custody matters have been suspended, the backlog of family law disputes will continue to grow. In fact, there has been an alarming uptick in domestic violence and child custody disputes during the past six months. Courts have been forced to reserve their limited in-person calendar spots for those matters that must be dealt with immediately. Unfortunately, everyone else has been forced to wait.  

Divorces with property to be divided, support orders to be imposed and parenting plans to be crafted are ideal for resolution by mediation. As a spouse or parent, you will feel better if you have a say in determining visitation plans, custody arrangements and alimony and child support payment amounts, among other things. Most mediators who assist in this area are very knowledgeable about the applicable laws and support guidelines, and can help in determining what your assigned judge will likely consider in determining what is in the child(ren)’s best interests. So whether the self-represented party comes to the mediation because (s)he cannot afford an attorney or because (s)he considers him/herself the best advocate for his/her side of the case, (s)he is welcome at the mediation table.

However, anyone attempting to mediate such important issues should come prepared. The mediator may or may not be an attorney. Regardless, he or she is not there to advise either side. The parties should do their homework before they arrive to mediate. For instance, if the parties need to create a parenting plan, each parent should bring calendars, schedules and a working knowledge of their child(ren)’s reoccurring activities in order to devise a realistic schedule. The parents’ work or school schedules must be factored in. There are considerations such as which holidays are most important to each parent and how the family has historically spent school holiday breaks and summer months. What is the preferred custodial arrangement sought by each parent, and are they personally able to be present to supervise and care for the child(ren) during their respective custodial time?

Turning to financial matters, the parties should be familiar with important financial documents such as recent tax returns, W-2 or 1099 statements, and their individual and joint credit card debt, financial account balances, and be able to document and explain other sources of income. Most importantly, the parties should meet with an attorney or financial advisor to prepare a monthly budget that is exhaustive as to household and child-related expenses in order to support a claim for alimony and/or child support and to document available income to be applied to the monthly expenses.     

A skilled mediator who specializes in this area will be able to help the parties resolve most matters, provided the parties participate in good faith. They should be encouraged to be candid and forthcoming with their financial records, employment details, time commitments and arrangements for post-divorce housing. The children will need a safe and nurturing environment provided by each parent. There are many resources available to assist self-represented litigants in preparing their case for mediation. The preparation really is not different from preparing for trial.

Often, parties will first consult with an attorney to better understand their rights and the mechanics of a mediation. Attorneys should be able to give clear guidance on the process. The consultation may go something like this: 

The Scenario

An emotional, anxious party schedules an appointment to speak with an attorney. She/He/They have determined retaining an attorney is not affordable, but an initial consultation is. A mediation is considered to be: “It’s a discussion, in which I share my side and my former partner shares their own.” In any event, this pro se litigant has booked an hour of the attorney’s time only to engage the legal professional in a lengthy therapy session with minimal ability to focus on the business side of things. The attorney should not solicit the party to become a client but instead embrace the role of “counselor”—legal, that is—and be prepared to provide helpful  information especially where is concerns the logistics, benefits and drawbacks of self-representation:

The Strategy

The following list will assist the pro-se litigant in properly preparing for the mediation.

1. Be prepared and be intentional in identifying the important issues and where one may be particularly emotional. The pro-se litigant should conduct the preparation work with the end goals in mind; i.e., to get a divorce and a fair custody agreement. With that said, “fair” does not necessarily mean “equal,” but a mediator will do her best to make an equitable division of assets and time, and a pro se litigant would be wise to enter a mediation with this key concept in mind.

2. Secondly, all information must be disclosed and dealt with directly in order for the mediation to proceed in good faith. The following documents should be compiled and brought to a mediation: financial affidavit, valuations/appraisals of various assets, up-to-date account statements and other key financial documents. Some estates are more complex than others, so in these cases, a financial expert should be consulted to resolve any economic-based questions beforehand. Additionally, a pro se litigant should also be prepared to discuss with a mediator any custodial reports or evaluations conducted in the matter. In my experience, this topic tends to be one of the more sensitive areas of discussion, so objective reports help to support one’s case. In the same vein, preparing child support worksheets and parenting plans in advance of the mediation are also helpful. The plans that are practical and feasible based on all parties’ schedules tend to be the most successful. These worksheets, along with other help mediation documents are available on your mobile device or laptop. Family law information centers are available in most states for those who need more assistance.^[1]

3. Regarding the actual mediation process itself, the mediator will explain the expectations and timeline for the session. Each party may be asked to give a brief opening statement, and then the mediator will proceed to meet with the parties separately to build trust, gather information, frame and clarify issues, structure proposals and refocus the session on productive dialogue and positive results. It is important to note for pro se litigants that this is your opportunity to speak in confidence with the mediator. It is advisable that one uses one’s time in a productive manner and avoid using the mediation as a therapy session or pity party. The mediator will then solicit your permission to share information with the other side as she sees fit in order to arbitrate the issues.

The key to a successful mediation involves managing expectations. Being prepared for and engaged in the mediation is crucial to a successful outcome, and that successful outcome is avoiding the financial and emotional tolls of an actual court proceeding. Divorce and custody disputes are inherently stressful, so to avoid the adversarial nature of the courtroom and possibly an unfavorable outcome that is inherent when a judge or jury of 12 strangers decides your fate, a mediation can be just the remedy for charting a road map to life after divorce. Family transitions are taxing, mentally and financially. Mediation offers parties a less-stressful, less-adversarial option for resolving their differences through a party-driven process for reaching settlement. When it comes to family law cases, access to justice is achieved when both sides provide their input, present their facts, argue their positions and resolve their differences in a productive, efficient and practical manner. Mediation is an efficient, cost-effective alternative to a formal court hearing. The assigned judge remains in charge because the mediated agreement will need to be approved and made the order of the court. Don’t wait for your case to be placed on a court calendar. Take control of your case and engage a mediator. You will be happy that you did.   

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Senior Judge Gail S. Tusan is a mediator/arbitrator/special master  at JAMS. She helped design the Family Law Division at the Superior Court of Fulton County (Georgia) and served as chief judge from 2014 to 2018.
Judge Tusan greatly appreciates the legal assistance provided by Chanel Chauvet, Esq., in creating this article.