As I head off to another mediation in a child custody case, I can’t help but recall the all too frequent objections I receive from clients about mediation:
“I don’t understand why we have to do this. It’s just a waste of time and money. We’re never going to agree to anything.”
Of course, the easy answer would be, “Because the court has ordered us to go to mediation.”
Yet, it’s the last part that really catches my attention. Often times, in family law cases, the level of vitriol and distrust between parties is unlike any other area of the law. Emotions are running high and otherwise calm and rational people find themselves at their worst and lowest. Learning how to tactfully deal with this very understandable position is the greatest challenge for any attorney practicing family law.
I usually respond to this objection by pointing out the statistics: More than half of all mediated family law cases settle. In my experience, a much larger number of those settle.
More importantly, there are many other reasons why parties should go into mediation hoping for it to settle and striving for settlement. Where children are involved, the strife and bickering that comes from fighting a contested divorce or a child custody case impacts those children greatly. When parties come to an agreement, they have one less dispute in front of them. Their stress levels drop. Children notice that mom and dad are no longer fighting. In addition, most studies and the anecdotal evidence of family law attorneys everywhere reveals an important fact: Family law cases resolved through mediation are more likely to be successful because the parties each had a hand in crafting the solution. The alternative is to allow the judge, who has likely never met the parties or their children before the day of their trial, make this important decision for them. That’s not a good alternative.
So as I head off to what must be my upteenth mediation session, I prepare to put my client’s mind at ease that this process truly is worth it, and they will, like most of my clients before them, thank me for convincing them to give mediation a good faith shot.