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Over the years I have helped resolve numerous family law matters as the mediator.  In doing so, I’ve made a mental list of what works and what does not work in assisting two people (usually parents) resolve their differences without the need for a trial.   I have also observed how people (lawyers included) conduct themselves during mediation and what is helpful and was is not.  

Do be prepared.   Having updated financial information and parenting plans readily available is very important to discussing the terms of any settlement.  Too many meditations break down because of the lack of information. Remember, one cannot agree upon something if they have no way to verify exactly what he/she is agree to. Failure to provide information can also be a signal to one’s commitment to the mediation process. 

Do listen.  Many, including lawyers, come into mediation so focused on their end game that they fail to really hear the other side and consider options.  Put aside the emotions and the legal strategies and listen to what the other side has to proffer.  You may be surprised. 

Do consider options. Just because the other side or your soon to be ex-spouse proposes an idea doesn’t mean that it should be automatically dismissed.  A productive discussion of ideas is the best path to a resolution, especially where children are concerned.  

Do submit a proposal ahead of time.  Having an understanding of the other party’s position prior to the mediation can lead to a much more productive session.  This also helps the mediator structure the negotiations.  Having a point of discussion ahead of time also signals who is invested in the process and who is not.  

Don’t litigate.  This don’t is primarily for the lawyers.  Mediation is not just a cog in the litigation machine.  Rather mediation is like the off ramp from the hectic speeding highway of law.  It is a place to slow down and put fault and blame aside so the parties can really focus on solutions.  Lawyers, most often, have a hard time with this.  But, allowing the client to use this space to truly talk through the issues, without the distractions of legal strategies or what they may “win” in court, will promote a better discussion and ultimately a better outcome. 
  
Parties who are able to resolve their issues are often in a better position to mend the hurt and pain caused by divorce, especially with regard to their children.   

Denise D. VanLanduyt, Esq. is a certified mediator and arbitrator in the State of Georgia.  She is also registered with the Georgia Office of Dispute Resolution.  

So, add one more item to your to do list.  Consult with a lawyer to discuss how to navigate the various legal intricacies in Georgia law you both may face with regard to real and personal property ownership interests even with a legal marriage.  A simple pre-nuptial, post-nuptial or merger agreement may be all that is necessary.  Taking this extra step will give you both the peace of mind that what you intended is truly as you intended – yours together. 

160 Clairemont Avenue – Suite 450 – Decatur, GA – 30030  Tel. 404-373-9446 denise@vanlanduytlaw.com

Not too long ago, I had the opportunity to address the women incarcerated at Arrendale Prison.  All 30 women in the classroom with me were Mothers.  All were serving sentences of five years or less.  They all were prepared to ask me questions about my area of expertise – family law.  Upon a show of hands, almost all had a pending legal issue; mostly dealing with custody or visitation.  Only two were represented by counsel. 

I am all too familiar with the unrepresented client, i.e., pro se.  Before going any further, and after a brief introduction to the State Court system in Georgia, I thought it was a perfect opportunity to discuss with my new students what to do in Court.  These simple guidelines easily to apply to all clients, perhaps some lawyers as well. 

1.   Dress appropriately.  I always tell my clients dress like you are going to Church.  No jeans, tennis shoes, or ball caps.  Men do not necessarily need to wear a tie, but wear nice slacks and a pressed shirt.  Women too should be appropriate.  Erring on the conservative side is best practice.  If you have to leave and go back to work, and you wear a uniform, that is fine.  Just be sure to let your counsel know in advance. 

2.  Be on time.  Be at least 15 minutes early to Court. When you enter the courtroom, sit down and be quiet.  Do not talk while waiting for your case to be called. Be patient.  This is not a time to play on your iPhone or read a book. 

3.  Leave your child at home.  There is no reason for a child to be in Court.  Unless the Judge or your attorney has instructed you to bring the child with you, make arrangements for their care or make sure that they get to school.

4.  Be sure your phone and/or pager is turned off before entering the Courtroom. Nothing irritates a Judge more than a phone ringing when he or she is trying to address cases.  If your phone rings in the courtroom be prepared to turn it over to the bailiff or even face paying a fine. 

5.  Stand when the Judge comes into the Courtroom.  Stand whenever you are addressed by the Judge.  Respond respectfully and answer his or her questions.  If you have an attorney, stand and let him or her speak for you.  The rule of speak only when spoken to is a good way to ensure you are honoring the respect of the Courtroom.  If you want the Judge’s attention or desire to convey additional information, ask permission, e.g. “Your, Honor, may I……?”

6.  When sitting at counsel’s table, avoid all urges to make noises, gestures or the like.  The Judge can hear every sigh, groan, grunt, sheesh, that comes out.  And, remember, even if you think the Judge is not watching, they are.  The Judge will see every move you make, every crossed arm, every eye roll, every jerking motion to talk to your lawyer and every haphazard movement to scribble a note to your lawyer.  Judge’s watch body language.  Leave the attitude and the ego outside the courtroom.  Remember to be respectful and you will be fine. 

7.  Be prepared.  Have all your documents with you in duplicate.  Have your facts ready and be clear and succinct.  Remember, the Judge can only consider what you present.

What is mediation?  As explained by the Georgia Commission on Dispute Resolution (GODR):

Mediation is a process in which a mediator helps parties negotiate their differences with an eye toward resolution and settlement. The mediator has no authority to make a decision or impose a settlement upon the parties, but instead tries to empower the parties to make the decisions themselves. The mediator does that by focusing the parties on their needs and interests rather than on their rights and positions. Although in court, the parties may be ordered to attend a mediation session, they are not required to settle their case in mediation. If the parties are unable or unwilling to settle in mediation, their case returns to the court for trial; the parties lose none of their rights to a jury trial.

Who is the mediator?  The mediator is a trained individual who is able to fully implement the above guidelines; ensuring a self-determinative process. Training in Georgia is rigorous.  Trained mediators undergo 28 hours of General/Civil mediation training which includes practicums.  The General/Civil must be taken before taking the domestic mediation training.   Domestic mediation training is a 42 hour course and also includes a practicum component.  Then, there is a domestic violence component (separate from the domestic training) which qualifies a mediator to be involved in cases with domestic violence. This training certifies the individual as a mediator.  The mediator is encouraged then to register with the GODR, which requires continuing education credit in order to maintain the standing.  All court associated mediators must be certified and registered with the GODR.  Mediators are trained, educated and required to adhere to a strict guidelines of ethics which benefit all families they work with. 

What is a self-determinative process?  It is a process guided by a trained neutral who assists the parties in working through their issues and coming to their own decisions.  As I have italicized above, the mediator does this by focusing on the needs of the parties rather than on their rights and legal positions.  This can be difficult, especially when parties are represented by lawyers.  Using a trained mediator can ensure that the parties have the opportunity to focus on solutions rather than focusing on what a Judge may do or who may have the winning argument.  For many lawyers, this can be very difficult to understand and implement.  But for families, it can be a great venue to prevent further damage.

When selecting a mediator, many lawyers choose individuals who have years of experience in domestic matters, but are not trained mediators.  This is perfectly fine, so long as your client is made aware of the fact that the lawyer is not a trained mediator and that the mediation process may not be  as described above.  Having years of experience in domestic law may be great for a late case evaluation, but may miss the mark in giving the parties a true shot a finding their own resolution. 

All mediators who have undergone the intense training described in this blog and who are certified can be found at www.godr.org.