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Well, if you’ve recently filed for divorce and you’re likely weighing your options, for some, that means turning to a mediator. Is mediation for you? Family law attorney Johnathan Marks with The Marks Law Firm here this morning to talk a little bit more about that. Good morning to you.
Good morning, Margie.
Yeah. So first off, what does mediation involve?
So mediation is an alternative dispute resolution process where the two parties would meet with an attorney who would help them facilitate an agreement. So the attorney isn’t representing either one of the parties, they’re a neutral individual who’s there to really facilitate an agreement if one can be reached between the two litigants.
Yeah. So how do you find a mediator that both couples feel comfortable with?
Well, it’s a hard process, to be honest with you.
I mean, you know, you’re kind of looking in the same manner you’d be looking for when you’re looking for an attorney, except you wanna focus on a particular factor. So, you know, objectively you wanna first figure out what’s the process that the mediator is gonna use. Is that person one that has more of a soft touch and is really gonna explore how to hit the feelings that are necessary to avoid the hard feelings going on here, but, you know, get to a resolution everyone can live with? Or is you looking for somebody that has more of a heavy-handed approach, where maybe they just take the emotion out of it and really get down to what the issues are to help move you forward to reaching a resolution?
Yeah. And you said there’re some questions like, “Does this person seem honest and forthright? Does this person communicate in a way that you understand and appreciate?” There’re some questions you should be asking them.
Well, absolutely. So mediation, the foundation of it really is whether it’s fairness. So do you believe that this process is gonna be fair? Because as you sit there, neither one of the parties is sitting there with their attorney to be their advocate, you’re relying upon the mediator. And so it’s a real trust relationship. So you have to focus on the fact of A, are you trusting this individual to make you, you know, knowledgeable, informed, and assist you down the way to make educated decisions for your divorce? And in doing so you have to be able to communicate effectively with that individual. Do they hear what you’re saying? Can they process it? Are they repeating information and answering your questions in a way that you really can understand to make those decisions?
Yeah, if the couple can’t agree on a mediator, they just do regular litigation?
Yeah. I mean, typically, you know, if you didn’t go to mediation first and you’re in a traditional divorce setting, you…if you can’t come to an agreement, you always can defer back to the court process. And sometimes the court will just appoint a mediator and say, you know, “Pursuant to a local rule you must attend two hours or four hours of custody mediation,” in an attempt to try to reach some sort of an agreement before coming back to court.
Yeah, let’s say you go into mediation, and maybe, I don’t know if they wanna tackle the hardest issue you have first or the easiest, but let’s say you have 10 different issues and you agree on 5 of them, but you can’t agree on the other 5.
Yeah. So mediation in and of itself, unlike arbitration, is nonbinding. So if you two go and you do good faith effort and you don’t reach an agreement, it’s okay. Or if you do reach an agreement and you then sort of have buyer’s remorse, you have the ability to opt out. So at the end of the day, you could be using it to have all of your issues resolved, or you also could be using it to resolve as many issues as you can and then shorten the amount of litigation that you would have in the traditional court system.
Yeah. I mean, you mentioned that the judge may actually say, “Hey, I want you to go to mediation first.” So this is something that they’re looking at. They want you to work it out.
Right. So in essence, the local court system has rules, especially for children, say, that the parents have to go to mediation and try to work with somebody to come up with a parenting plan that would be in their children’s best interest.
All right. Family law attorney Johnathan Marks. Thank you, we appreciate it.
For more information on The Marks Law Firm, head to the “STL Moms” tab, we’ll link you to them.