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Mediation: An Advantage to Your Family

Posted by James Victor Esh | Nov 30, 2023

Mediation is an alternative dispute resolution process in divorce. From the perspective of parents, children and extended family members, reaching an agreement in mediation can be a win-win event. An alternative to traditional divorce litigation, in mediation the parties, meet with a mediator whose job it is to assist in the process of reaching an agreement. Instead of burying the true needs and desires of the parents in children in layers of motions and exhibits, a good mediator helps the parties identify what is truly important, fair and reasonable in a controlled neutral meeting or series thereof. 

From co-parenting to learning to live again as a single person, the divorce process affects many aspects of the families involved. The process or resolution of disputes is one people often remember and talk for years past the dispute and their memories of that dispute are often shaped by experiences. If the traditional divorce litigation model is used and the court decides outcomes, there is a sense of winning and losing. Alternatively, in mediation, the outcome is a settled agreement replete with compromise and hopefully a mature appreciation of what may be in the best interests of everyone involved, including children, parents and extended family members who may be quite involved in the outcome of a divorce. 

Consider the perceptions of mediation as an alternative to litigation by children, parents and extended family members.

First, look at divorce from a child's perspective. Depending on the age of the child(ren) and the communication with the parents, the child might feel compelled to pick sides and support their favored parent. If the favored parent is winning or losing in a divorce battle, a child may adopt a skewed impression of their parent's strengths or weaknesses. What a child might not understand in a litigation battle is the concept of cutting losses. Is mom or dad weak for not fighting harder over property? Does this same child understand the costs of traditional litigation? In mediation, the parties should take off the fighting gloves and maturely discuss and consider options with the mediator and their attorneys, instead of leaving it up to a judge to decide what happens. To the child, parents who work together to reach mutual agreement are more likely viewed as responsible leaders. 

Next, consider divorce from the parents' perspective when there are children involved. No parent wants to appear a loser to his or her child and likewise, no parent should want to appear weak. Mediation offers an opportunity to set an example and reinforce the value of compromise forward progress. Mediation also promotes co-parenting after divorce in an environment where there are no winners or losers. Setting the tone for future relationships can be more positive in mediation and if any decisions need to be revisited in the future, a mediation setting can be more appealing than the alternative of preparing for a battle in court where your business then becomes public. Parties to divorce who value compromise and responsible business decisions are more likely to exit the process without bitter regret. 

Then, look around at extended family members who seem to live through the divorce with their son, daughter or in-laws. Your extended family are the people, next to close friends, who will talk to you about the divorce and its process while it may be ongoing. Families who protect “their own” might react strongly when their child or grandchildren are perceived winners or losers in court. A much more settling experience for the elders, aunts, uncles and cousins is compromise and agreement. When the parties settle disputes through mediation, the experience can remain more private to those involved and the extended family can relax and believe the divorcing parties are able to work through the process of compromising in their respective best interests without needing an army behind them. 

Acknowledge an attorney and mediator's perception of the process of mediation and outcome as an alternative to traditional litigation.

Finally, from the perspective of a family law attorney and mediator, Victor Esh offers the following perspectives: “When I sit down with my family law clients and, frankly, when I am mediating a case, I often will explain the purpose of a mediation. Probably the biggest advantage of a mediated settlement agreement is the agreement can resolve a whole host of issues that a Court will not have the time or, perhaps, can resolve. A mediated settlement agreement is tailored specifically to your family and your family's needs. Granted you don't get everything you want but that is true in Court. Additionally, you are able to discuss issues in mediation which will never be heard in Court and as a result, your agreement is better matched to your family's needs. In mediation, you are able to discuss and develop solutions to concerns for your family over an 8 hour period (or longer period of time) with parties who already know the foundation of the family. In litigation, you are often given time limits with the Judge and spend a considerable time educating the Court on your family.  Often times, the Court will only allow you 2, maybe 4, hours per side to educate the Court and attempt to explain the issues. As a result, the Courts generally only have a relatively limited view of the family dynamics and are making rulings on your family based on that limited view and the ruling is binding on the parties regardless of whether it truly fits your family.” Attorney Victor Esh.

About the Author

James Victor Esh

Victor understands the struggles of families.  It is at the core of how he practices.  When a family must be reshaped, he understands the emotional struggle this causes.  He seeks to resolve conflicts in the most efficient way by reaching agreements where they can be made.  When an agreement can'...

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