In Kentucky, the Legislature enacted a law that allows parties to #FamilyLaw cases to negotiate outside of Court. The law is…
403.180 Separation agreement — Court may find unconscionable. (1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for maintenance of either of them, disposition of any property owned by either of them, and custody, support and visitation of their children.
What mediation is: An informal and an out of Court, or extrajudicial, process, whereby parties in a given civil action, agree to meet and use good faith efforts to resolve the issues that form the basis of their case in Court, with a neutral, third party, whose sole mission is to help them reach an agreement.
What mediation is not: First and foremost, mediation is not Court. No Judge is present and although lawyers may represent parties, and a guardian ad litem or financial advisor or friend of the Court may be present, the evidence Rules and statutes do not govern the session, but rather what the parties want and how to reach a compromise, if one may be had.
Why mediation: Because the adversarial legal process as applied to families with children is generally not as effective as settlement negotiations for several reasons, the system itself is built around “battle” and “war” and winning and losing which doesn’t translate well to raising emotionally healthy kids with a coparent in a long term relationship regardless of how the coparents feel about one another. Additionally, parties are at the mercy of the skill and experience of a family court Judge, without a jury, whose decisions about their finances and custody and parenting may create ripples for a lifetime. Moreover, self esteem is dependent on autonomy to a great degree, and what better time than the disruption that is divorce or separation or a break up, to find and summon your own power to make decisions about your life. Your kids are sponges and will model your behavior whether you want the to or not. The way that you “handle your business” in a family law case will likely make a lifelong impression on them. Finally, while mediation can be expensive, as it can take several sessions to allocate and divide assets and assign debt and determine parenting schedules and spousal and child support, it is probably more cost effective than Court in that the preparation for mediation versus a trial may not be identical, expert witnesses might not be necessary and adherence to formal Court procedures and evidentiary rules and statutes is not required in mediation.
Can my mediator give me advice: No mediation is a) confidential b) intended for parties to make hard choices based on the facts and circumstances of their lives, which may or may not align with the latest legal authorities and c) mediators are negotiators, not counsel or the Judge.
Can I record our session: Absolutely not. Mediation is confidential.
What if I need a few days to think about if I want to agree: The point of mediation is for parties to self determine their own outcome surrounding their lives to conclude the Court action. Some mediators may encourage this practice. I am not one of them. If there is an issue that a party cannot commit to resolve that day, we can revisit the issue at a separate session and resolve what we can that day.
Is my mediation agreement a valid Court Order: Yes. Once the parties sign the agreement, they are bound by its provisions. There is no three day or even a one day return policy barring fraud and even then the Court could rule the parties are still bound to the provisions.
Can I enforce my agreement if the other party doesn’t honor its terms: Once the parties or counsel files the agreement for the Court to sign, the court’s clerk will enter the agreement after the Court signs it and it will have the full force and effect of an Order that was obtained during or after an in court proceeding.
If the other party contests something the party agreed to and we need clarification about what the intent was or how it came to be, may I call the mediator as a witness: No.
Do we pay for mediation: Yes, each party to the action typically pays one half of the mediator’s fees per hour unless the Court has Ordered a different split or allocation or the parties agree to a certain allocation or that one party will pay the full cost.
Do I have to have counsel to mediate: No parties who represent themselves may go straight to mediation without counsel. They may not rely on the mediator for legal advice anymore than represented parties may.
What if I know in advance of mediation the other party will not negotiate: If the Court Orders the mediation, parties must attend and exercise good faith to negotiate.
The other party is a narcissist or is verbally or emotionally abusive, how can mediation work: The parties are obligated to act like adults, not curse at each other, not verbally abuse each other and try as hard as they can to not yell at each other, kick things, storm out of the room and slam doors or make threats. Should a party act out in anger or in an inappropriate or threatening manner, the mediator could report it in feedback to the Court or cancel the mediation altogether or admonish the party and attempt to continue.
Do we have to be in the same room during mediation: No. Real and virtual breakout rooms are possible. However, mediations tend to proceed more quickly if parties can stay at the negotiating table together.
I have a domestic violence order against the other party do I have to mediate: No. But you may choose to do so if you do not feel threatened physically.
May I bring my new spouse, my significant other, parent or children: No.
What if the other party is high or intoxicated during the mediation: Alert the mediator or counsel to cancel and reschedule the session as each party must be able to have informed consent.
What if we can’t finish mediating the case in three hours: It is vital to tell your mediator or counsel what your time limits are for the day to pick up children form school or daycare or go back to work. If you can’t take off the entire day, let your mediator or counsel know your window to be present.
What do I bring with me: Yourself, a positive and open attitude and materials you or your counsel believe are germane to settlement not necessarily to a trial. If a case is filed, the more prepared you are with pleadings, to include prior Court Orders or agreements, the faster and smoother the mediation should be.
Can I talk about mediation on social media: No. Mediation is confidential.
What can I do to prepare: If you and your spouse, partner or coparent work well together, you may have exchanged financial documents prior to mediation such as tax returns, 1099s and W2s and paystubs, the cost of day care, the cost of health insurance for children, mortgage payoff letters, credit card balances and statements , updated retirement and investment statements and copies of blue book values to cars and vehicles, and bank account balances, among many other documents. Regardless of your relationship, parties to divorce and separation are required to exchange financials via a verified disclosure statements and parties to child support modifications should have access to the other’s pay information to determine if a modification is warranted.
Once we sign the mediation agreement is our case over or do we have to go to Court: If your agreement is comprehensive, i.e. you have resolved all the issues before the Court or on the table, the mediation agreement can indicate that all matters before the Court are remanded and/or that the parties will take next steps to enter a Decree of Divorce or Separation and file the requisite documents to finalize your case.
What if the whole agreement falls apart: Either party may seek resolution in Court if the party or counsel believes it is necessary and the Court will entertain the requested relief.
Is mediation more successful than Court: While I can’t answer that, I believe that parties who are able to negotiate do their children a huge favor in that they see parents model resolving their own disputes, rather than asking a government actor to intervene and make their lives work for them. While parties negotiate they put skin in the game and become proactive stakeholders in the outcome of the decisions of the day. Mediation is undoubtedly incredibly stressful and high stakes. Yet, the pressure is nothing compared to a hearing or trial with the decisionmaker judging one’s credibility or truthfulness and all decisions being governed by Rules of Practice and Procedure and Evidence Rules that are the opposite of compassionate and take primacy over the circumstances and lives of the human beings in Court.
Why I trained to mediate: Because I would much rather work to solve problems than watch people create them.