Alternatives to a Litigated Divorce: Mediation
This blog is the first in a series of posts discussing potential alternative dispute resolution (“ADR”) processes that parties can use instead of going to court. As a litigated divorce ending in a trial can often be expensive, emotionally grueling, and time consuming due to court scheduling, more and more people are turning to potential alternative methods for settling their family law cases.
One of the more well-known ADR processes is known as “Mediation.” Mediation is a dynamic, structured, interactive process where an impartial third party (known as the Mediator) assists disputing parties in resolving their conflict through the use of specialized communication and negotiation techniques. It is the role of the mediator to try to facilitate settlement of the case so that the parties don’t have to proceed to trial and are able to come to a resolution that is acceptable to everyone.
Mediators have different styles and mediation can be run in a number of ways. Some mediators and parties prefer to have the mediator meet with both parties (and their attorneys) in the same room to try to work through their differences. Other mediators and parties find it helpful for the parties to be in separate rooms and have the mediator move back and forth between the rooms to present and discuss settlement possibilities, proposals, and counter-proposals. This is especially helpful in higher conflict cases.
There are several key benefits of mediation:
1. Although mediation requires the parties to hire a neutral third party to serve as a mediator in addition to their own attorneys, this additional expense is usually well worth it. If the parties are able to settle their case over the course of their mediation session (or over the course of multiple sessions, depending on the complexity of the issues), then any cost paid for the mediator is likely to pale in comparison to the legal fees and expert fees which would otherwise have been incurred by going to trial.
2. Mediation can result in a quick divorce turnaround. Some New Hampshire Courts have a backlog of cases to the point where parties are waiting several months to a year, or even longer, before getting a final hearing before a judge to finalize their divorce. If mediation is successful, the parties may sign all of their documents at the mediation session and submit them to the Court immediately following mediation. Based on the Court’s turnaround time and assuming all of the documents are in order, the Court may sign off on and approve the divorce within weeks.
3. Generally, everything said in mediation is confidential and may not be later used at a subsequent court proceeding. This allows for the parties to speak freely and can lead to a greater likelihood of settlement.
4. Mediation allows for the parties to take control of their own destinies and reach an agreement that meets the unique needs of themselves and their family.
Although mediation has many positives, it is not for everyone. If one of the parties is unwilling to compromise or is unwilling to take a reasonable position regarding settlement, mediation may not be a good use of a party’s time and money.
There are two types of mediation in New Hampshire: private and court-sponsored. New Hampshire Courts require parties that have filed a Petition for Divorce involving minor children or Parenting Petition to attend at least one two-hour session of court sponsored mediation (though parties can elect to use private mediation instead). Court sponsored-mediation typically costs each party $150.00 for two, two-hour sessions. In contrast, private mediation is when the parties hire a mediator outside of the court process, either before or after the filing of their divorce or parenting petition. Private mediation is generally more flexible and typically will take place at the mediator’s office or one of the parties’ attorney’s offices. Private mediation generally allows for the scheduling of entire day long mediation sessions, which may be more helpful in facilitating settlement.
Attorneys at Soule, Leslie, Kidder, Sayward & Loughman are experienced in the mediation process. While we do not currently serve as certified mediators, we represent parties as legal counsel at mediation to advise them of their rights, craft mediation strategies and proposals, and help to ensure fair settlements for our clients. We can also begin the process for you and help to find an experienced mediator to suit the needs of your family. If you have any questions about the mediation process or about your family law case in general, please feel free to contact us.