Discussions of family law matters can be emotionally harrowing for all parties involved. Legal issues related to the family can be emotional and incredibly divisive, especially if divorce is involved. When a dispute arises that creates an emotional wall that prevents any solution from being reached, mediation may be a good option to consider. Mediation is commonly sought out in issues involving divorce, support, or child custody as an alternative to litigation or courtroom processes. The process caters to the emotional needs of both parties and allows them to express themselves in an environment where both of the parties can be heard. Unlike arbitration, mediation is seldom legally binding, so the pressure of a judge, arbitrator, or other court representative making a decision is off. Instead, the parties will try to arrive at an amicable solution through discussion of what issues are important to them.
Mediation is the process of using a neutral third party called a mediator to encourage both parties to come to an amicable solution. Mediation differs from methods used in court, such as conferences and hearings, because it relies on both parties being guided to their own settlement through mediated discussion rather than a judge or other court representative making a decision. Pennsylvania does not retain its own court-appointed mediators; however, there is an organization of mediators in Pennsylvania that can be contacted to select one for your case. Mediators are not typically assigned by the court but instead chosen by one of the participants. Mediators come from a wide variety of professions, such as marriage counselors, psychologists, social workers, or other professions that specialize in communication between parties.
Types of Cases Taken On By Mediators
Mediators take on a variety of cases, and they are not always related to matters of family law. Mediators handle disputes between neighbors, business owners, and more. When a mediator does take on a family law dispute, it will typically relate to one or more of the following:
- Child custody issues
- Spousal or child support issues
- Divorce and separation
- Property division
These matters will often come up in discussion, and the mediator will make efforts to hear and resolve both parties' concerns amicably. While these are all matters of family law, oftentimes, one of the issues presses more heavily on one party's agenda, and mediation can help bring it forward for discussion.
The mediation process can be requested by either party. Following this, the mediator will contact the opposing party. Mediation is an entirely voluntary process, so the other party can choose not to engage or can terminate the process at any time if they feel the discussion is not useful. While participation in mediation cannot be mandated, a judge can require parties to a family law matter to attend a mediation orientation session to learn more about what mediation offers.
Mediators will hold a mediation session at a designated location. Prior to a mediation session, parties and mediators may set rules for how the discussion may proceed. At the mediation session, both parties will be allowed to air their own points of view and the mediator will try to direct the conversation toward what issues are important to both sides. The mediator will work to summarize and frame the issues that are brought up in a way that shows both parties one another's point of view. Parties may also request to speak with the mediator independently, and the mediator will keep these meetings confidential unless the party desires otherwise. Sometimes, mediation can take multiple sessions before an agreement or solution is arrived at. If an agreement is reached, the mediator can help the parties put it into words. If the mediation session is being held in court, a custody agreement or support agreement may be drafted at this time as well.
It is important to remember that mediation is not always legally binding unless an agreement is filed with the court. This means that if, after some thought, one of the parties no longer agrees with the terms agreed to in mediation, they may pursue other means to resolve the matter. This also means that you may find yourself in court even after mediation has concluded, depending on what the other party decides to do. While custody, support, and divorce matters may sometimes be resolved through mediation, it may be helpful to consult with an attorney in preparation for having to go to court if it does not work out as planned.
Can What I Say In Mediation Be Used In Court?
If you are involved in a mediation proceeding as part of your family law case, you may be concerned that what you say to the mediator could be used against you. For instance, in cases of child custody, parents might be worried that what they say in mediation could be repeated in front of their judge and negatively affect their parenting time.
In general, what the parties say and the documents they use during mediation are confidential and cannot be used as evidence in the court case. There are, however, some exceptions to this rule. First, if the parties agree to a settlement and submit that settlement for approval to the court, then the settlement agreement is no longer confidential. Unless both parties agree to submit the agreement, it will remain confidential.
Second, not all statements in mediation are privileged. Threats of violence, admissions of abuse, or evidence of certain crimes can be used against the parties later on. Parties to mediation should not assume that they have the same type of ironclad attorney-client privilege that they do while speaking privately with their attorney. However, in general, the actions and statements of parties during mediation cannot be used as evidence in court later.
Finally, evidence or documents presented in mediation may not be directly admissible themselves but could lead attorneys for the opposing party to discover that evidence in a way that would make it admissible. So while people who are involved in mediation can be sure that most of what they say will be kept confidential, it is always a good idea to speak with a family law attorney before and during the mediation process.
Can I Involve My Attorney?
Parties to a mediation are not required to have an attorney to represent them. However, the mediator cannot act as either party's attorney or give legal advice. As a result, many people choose to have their attorneys attend mediation with them to give them advice during the process. A family law attorney can advise you of your legal rights during the process, what a judge might require you to do if you go to court, and what you should or should not say to best plead your case to the mediator. Additionally, an attorney can draft the final mediated settlement agreement and ensure it conforms to Pennsylvania law and standards.
Attorneys can also help their clients choose the best mediator for their case. In Pennsylvania, mediators can come from any number of professions and backgrounds. Some mediators have more experience in certain types of cases than others, and others may be better suited for the types of facts or personalities in the case. Choosing the right mediator can substantially affect the chances of having a successful mediation.
Mediation May Not Be For Everyone
Mediation is a powerful tool that can help divorcing or separating couples decide on child custody, divide their property, and work out a myriad of issues outside of a courtroom. However, mediation has its limitations and may not be for everyone.
Mediation requires the parties to engage in a back-and-forth dialogue through their mediator. When one party is extremely aggressive or hostile or refuses to cooperate with the process, it may be better to have a judge decide matters in the family law case. Similarly, mediators cannot decide matters of crime or violence; If the parties are dealing with problems like domestic violence or child abuse, then a mediator will not be able to settle all issues.
Mediation also will not uncover instances where one party is hiding assets or being untruthful with the mediator. Unlike legal proceedings, where both parties have their financial statements and other documents examined, a mediator relies on what is being presented to them at mediation. Without the legal discovery process, a party intent on hiding money or property has a better chance of doing so in mediation than in court. For that reason, people who believe that their former partner or child's parent is hiding assets should not rely on mediation alone when settling their case.
Resolve Issues While Protecting Your Rights
While reaching an amicable settlement can be beneficial and much less stressful than going to court, it is important to ensure that your interests in the matter are protected. While mediation can offer one possible solution, an attorney can advise you on what your chances might be if you were to take the matter to the courtroom.
Even when mediation is entered into with good intentions, it may not always result in a favorable outcome. In order to secure your and your family's best interests, it is advised to consult with an attorney to know what all possible outcomes may be. If you or a loved one is involved in matters of Family Law, contact attorney Joseph D. Lento today. Our office can help you decide the best way to resolve your case with as little stress as possible. Call 888.535.3686 today to find out more.