Why litigate your family law matter when you can mediate?
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Sorting out the division of property/debts and resolving ongoing care arrangements for children is often very problematic at the end of a relationship. If the couple cannot agree, they have the option of putting the dispute into the Family Court and having a Judge resolve the matter at trial. However, with the average wait time for a trial in the Family Court at 1 – 3 years and the average cost of a Family Law trial sitting between $20,000.00 to $90,000.00 (or significantly more), a process known as “Mediation” is emerging as a much better choice and here’s why:
- The wait time to get on for a mediation is around 3 months;
- The average cost of hiring a Mediator is between $1,500.00 – $5,500.00 and each party usually pays half;
- Separate legal representation for each party is encouraged but not mandatory; and
- A mediation takes up only ½ or a whole day to run and, the general success rate of settlements out of mediation is around 85%.
How important is it to choose the right Mediator?
As for the choice of the Mediator, there really is no substitute for experience. Although a experienced Mediator usually comes with a higher price tag, that experience enables the Mediator to:
- Communicate with both sides with excellent bedside manner;
- Challenge each side as to the realities of what they really might expect to obtain if the matter was to go onto Court and how much that would cost; and
- Intuitively sniff out and repackage issues into a format which is easier and more palatable for the other side to understand and accept in the negotiations; and
- Act as a very effective “honest broker” in the forming up of offers to settle, to be communicated from one side, back and forth, to the other.
Is there any limit on the number of mediations that can be done?
No, the parties in each case are perfectly entitled to conduct as many mediations as they wish however, generally speaking, once the parties have had one go at a mediation, it usually follows that if the mediation has not succeeded in settling, one side or the other will be reluctant to try the same exercise again and usually will be then looking to push the matter onto Court. For this reason, choosing the right mediation service and doing the best possible preparation before the day of the mediation becomes all the more important because you probably won’t get a second shot at mediation if it fails the first time.
What factors typically cause mediations to fail?
Although a success rate of 85% at mediations is very high, there is always the 15% of mediations which fail to settle. Typically, the reasons why mediations do not settle fall into the following categories:
- There is a really significant dispute between the parties on a very critical fact or set of facts and a fair and proper result in the case changes dramatically between the parties depending upon which version of those facts are ultimately believed.
- One or perhaps both of the parties have not done sufficient preparation before the mediation to properly understand the potential range of outcomes that they might expect in front of a Court (in short the result that comes from your best day in Court and the result that comes from your worst day in Court).
- There is important fact finding that has not yet been completed between the parties before the day of the mediation resulting in one side or the other refusing to accept the “truth” of a position put up by the other upon the basis that they haven’t yet seen the documentation or information from which they can be sufficiently certain that position is factually correct.
- Due to a combination of potentially bad legal advice and/or a delusional belief from one party that their particular position “could not possibly loose in front of a Judge in any circumstance” one party is holding to their position with dogged resistance and consequently, little to no inclination to try to negotiate to find some form of middle ground.
- There is a significant inequality in the bargaining power between the parties, such that one party might be holding all of the money, the resources and potentially all of the information and abuses that power by making minimal offers to the other party.
Where some, or potentially all of the above features are present, it may be that mediation is the wrong option altogether, and with the consequence that the parties are left with no other option but to go the hard way around and attempt to resolve the matter through the Courts.
Are there different models/styles of mediation?
Another critical decision for any Mediation is selecting the best type of Mediation model. There are approximately 400 different styles of Mediation but in essence, the main divisions come down to the “evaluative model” -v- the “facilitative model”. In the facilitative model, the Mediator controls the discussion/offers between the parties but does not provide any independent opinion as to how those offers compare to the result(s) that might be expected at Court. In the evaluative model, the Mediator will appraise the content/quality of offers being exchanged and, if necessary, will put pressure on one or both parties to increase or decrease their position so as to keep the negotiations inside the range of results that might be expected at Court. Both styles of Mediation have their place but generally speaking, the issues which have driven the parties to try and resolve their dispute via Mediation often do require some form of independent “evaluation” and hence the evaluative model is commonly selected.