-By Nedda Ghandi, Esq.
It may seem odd at first to learn many divorce attorneys are recommending their clients choose private mediation rather than trial in family court. After all, divorce attorneys are litigators, and trying cases is a big part of what litigators do. It turns out that the benefits of private mediation in appropriate circumstances apply not only to the client, but to the attorney as well.
In private mediation, the parties decide together, voluntarily, to hire a third-party mediator to facilitate a resolution of some or all of their contested issues. Private mediation may resolve issues of custody, visitation, alimony, child support, property division, debt allocation and more, whereas court-ordered mediation may be limited to specific aspects of the case. Ideally, the private mediator is a family law attorney or retired judge with extensive knowledge and experience in family law and is therefore able to facilitate settlement discussions that are grounded in the law and informed by the realities of what would likely occur if the case did proceed to trial. The good news is that the private mediation process is less adversarial and often far less expensive than full blown litigation. More importantly, mediation allows the parties to play an active role in fashioning the solutions to their disputes rather than tearing each other to shreds in the courtroom and leaving these decisions up to a judge who, knowledgeable and well-intentioned, is nevertheless a stranger to that family and confined by evidence admitted during the proceedings.
Although the parties are not required to have attorneys representing them during the mediation sessions, it is often advisable if the parties can afford it. For example, attorneys can ensure that their clients understand the legal consequences of their decisions and can offer them real-time advice about whether a proposed resolution is fair and reasonable, or if a more favorable result would be likely if they proceeded to trial. Further, when mediation is successful and it comes time to reduce the agreement to writing, the parties’ attorneys can ensure that the written agreement accurately reflects the resolution reached.
Family law attorneys also play an important role in the period leading up to the mediation. Throughout the course of private mediation, a fair settlement is predicated on full disclosure by both sides. Thus, attorneys work with their clients to produce documents and evaluate the production from the opposing side, in addition to other forms of discovery. In more complex cases, expert reports concerning child custody or financial matters may be necessary predicates to mediation.
As previously indicated, private mediation mitigates the contentious and adversarial nature of family law disputes. In certain cases, it can also provide an added degree of privacy for the parties, particularly if mediation is contemplated early in the case, and before either party feels compelled to file motions containing acrimonious allegations and accusations. Private mediation occurs behind closed doors, and the discussions had during the process are confidential and do not become part of the public record. This privacy may be appealing to parties in certain high asset cases, and particularly when there is a concern that business interests could be harmed by a public battle over ownership of the business.
When children are involved, the benefits of this privacy can be even more pronounced. The less adversarial approach of mediation often results in less contention between the parents, both during the mediation and following settlement. That being said, it is not surprising that the children of parents who behave in a civil and perhaps even cooperative manner in a divorce often experience less trauma and make a smoother transition to the post-divorce dynamic than those whose parents go the more acrimonious route.
Reaching a settlement through mediation can benefit the post-divorce relationship of the parties as well. Given that the parties experienced a feeling of control over the process and the agreed upon outcome, rather than having the court’s decision forced upon them, the need for post-settlement intervention from the court may be reduced. The parties also tend to experience a better post-divorce relationship having been spared a protracted and bitter court battle.
Finally, the relationship between the family law attorney and client also benefits from mediation. Clients often appreciate their attorney’s efforts in encouraging a method of resolution that mitigates the financial and emotional costs of an already difficult process. The client who emerges from mediation with a stipulated settlement may be more satisfied with their divorce attorney than the client who emerges from contentious litigation depleted both emotionally and financially. Not to mention, a satisfied client is far more likely to refer new business to the attorney than a dissatisfied client.
In sum, while private mediation is not appropriate in every case, litigants and their attorneys should evaluate it as an option early the case. In appropriate cases, private mediation can be a valuable tool in helping clients resolve their family law disputes by mitigating the financial and emotional costs of the process and offering the parties a chance to meaningfully participate in crafting solutions that best serve their family.
Nedda Ghandi, Esq. is the founding partner of Ghandi Deeter Blackham Law Offices. A Nevada native, Ghandi is a graduate of the University of Nevada, Las Vegas William S. Boyd School of Law and has practiced law in Las Vegas for 9 years. Ghandi has written numerous articles for publications concerning interesting developments in the law, and has been selected as a memeber of Nevada’s Legal Elite and as a Super Lawyer every year since 2013. Ghandi Deeter Blackham specializes in family law, bankruptcy, guardianship, and probate. Consultations may be scheduled by calling 702.878.1115 or visiting www.ghandilaw.com.
The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.