As people we all know that conflict is simply a part of life. We see conflict in every aspect of our existence. We see it take place in all of our relationships. All people hold diverse opinions and beliefs. Some are more competitive than others, and most simply seek to have an opportunity to voice there point of view and to be heard.
Given the fact that we are part of a very large society; whenever there is a dispute either in business relationships, social relationships or all other civil activities that we might engage in, most folks rely on the courts to seek compensatory relief for their injury or harm. The court system can work well if people are represented by capable attorneys, and the processing of civil claims is achieved within a reasonable time period after an individual suffers harm or injury.
However, we are very aware of the increasing number of civil claims increasingly overrunning our courts, and the increasing delays in processing times for most of these claims. Now, if an individual is injured in a motor vehicle accident, or is involved in a medical malpractice case; the court system provides access to justice in that the trier of fact sifts through the facts to find out the truth and compensate the injured party. This might be stressful and time consuming, yet it is the system that we all rely upon for the most effective relief that is currently available. We could be a part of other civil wrongs that might occur as against us, and we might just decide to use the courts for our recourse in seeking justice, and to be compensated for our pain and suffering in monetary terms as well.
II. Family Issues
Nevertheless, in the realm of family disputes; whether dealing with couples having inter-marital conflict, tension and stress. Or, couples finding difficulty in making decisions relative to obtaining a formal separation and divorce. The collateral issues associated with such issues that affect most couples are: The impact on the children. Also, the family business holdings, real property holdings, or investment accounts. And, in many cases, the costs associated with future relocation of a spouse of spouses, and finding employment alternatives as well; Also, finding further supplementation of income during this stressful time for either spouse.
A. The court system can in most cases be an effective place to filter the arguments of each side and find who might be in the right or who might be in the wrong. Usually in these cases there is a winner and a loser. The court system operates in an adversarial manner. And this system produces a result that might be beneficial in determining fault or degree of fault to determine who might win. Or, who might receive a monetary award to cure the injustice.
B. Mediation is an effective alternative to litigation in that it offers families in distress, a proposal-based process that empowers the parties, and provides them with greater flexibility than litigation. Mediation is an alternative dispute resolution technique where family members in conflict meet with a neutral third party (Mediator) to have a productive conversation about their unique situation. The meeting is private and confidential. The party’s will have an opportunity to deliberate, converse and relay their personal perspective on the situation. Each will be given the opportunity to voice their position and to be heard by the other party. As this basic foundational structure is allowed to permeate the discussion; an interesting dynamic is developed where people are empowered to solve their own crisis aided by an effective mediator who simply assists the conversation and develops creative ways to solve these difficult problems.
Cooperation is a key component of this exercise. The Family can decide to have other professionals also engage in assisting them and the mediator as well, to develop a comprehensive plan of action or blueprint to support the resolution of their unique situation. It can be tailor-made for each individual case. In many cases the involvement of competent legal counsel is critical for each spouse to understand their individual legal rights. Yet, the aid of other professionals can also be equally instrumental to develop a successful plan of action. By means of mediation the goal is to provide couples with the best tools necessary to be empowered to solve their own family crisis in a private and confidential setting; rather than rely on individuals that might not be empathetic to their individual needs, or collateral consequences, and are only focused on a win or lose result. Not because they are not sensitive to the couples dilemma, but simply because of the adversarial structure of our court system and the usual adversarial manner in which attorneys relay information to one another.
III. Cost of Litigation
Furthermore, litigation in a divorce case can be a very expensive process and can be hugely stressful. Remember that attorneys represent either side in any conflict. Therefore, each attorney is hired to be an advocate for one side of the equation. This can causes many different layers upon layers of arguments supported by a trail of costly letters, motions and ancillary proceedings that simply cost too much money and lead only to an increase in polarization and disputations. Now, do remember that mediation is not for everyone; that is, only two willing party’s can effectively engage in mediation. Also, a mediators work is completely different in approach than that of an attorney. A mediator actively intercedes as a neutral third-party, to support the family communication, even if it is uncomfortable, to aid the couple in finding solutions.
A. The mediator cannot provide legal advise; however, the mediator can provide legal information. A mediator must be patient and must also be a guide through the malaise of fear, uncertainty, resentment and anger in these situations. An attorney will focus on the facts of the case to support one side over the other. One winner and one loser scenarios. The mediator encourages mutually beneficial outcomes. And, encourages each party to a dispute to make proposals to one another. These proposals may be rejected, accepted or to be considered in a future negotiation. While an attorney is a retained advocate and represents each party as an officer of the court. The mediator works in a private setting with each side to encourage mutual cooperation in resolving areas of dispute in a case. Further, once in court everything discussed would be on the record and open to the public. Confidentiality is still honored and encouraged in the settlement of mediated matters in the State of California. Therefore, matters discussed or work product developed in preparation for mediation, or during mediation are not discoverable in future legal proceedings. Now, these rules might change to a degree, but for now confidentiality is honored still when in a mediation setting.
IV. Other Alternatives
It is important for an individual involved in a dispute to understand fully their options when dealing with a difficult family matters. Attorneys do offer collaborative law as an alternative to mediation. This is when two collaborative attorneys waive their right to represent the client in court and are engaged to represent clients in a private setting. This is a more effective method to seek to resolve family conflicts; nevertheless, such a process can also be more costly than mediation since the attorneys will charge their usual rate for representation even though the case might be resolved in a collaborative manner. In addition, knowledge of the law is very important to provide clients with their individual legal rights in any circumstance; yet, mediation is a practice that requires a very specified skill set that being an attorney at law alone cannot accommodate.
In other words, a mediator is a professional that is not focused on the rule of law necessarily, as much as being focused on the actual real needs of the party’s involved in conflict. People in conflict are given vast flexibility in how they might wish to resolve their dispute. They do not necessarily need to adhere to a preconceived set of rules that might not apply to their unique situation. A qualified family mediator will assist the parties to a dispute to find creative solutions to difficult problems. It is important to explore a vast number of options prior to committing to any one approach. In other words, couples engaged in conflict and contemplating separation or divorce can fashion an agreement or set of agreements, resolving a multitude of issues in unique and creative ways, that meet their mutual needs and solve their concerns. So long as the agreement and its provisions are arrived at via a process of proposals and mutual agreement between the parties without coercion.
By Enrique G. Koenig