Don’t Litigate…Mediate: The When, Where, and Why of Mediation


Anyone seen Wedding Crashers?  If not, watch it immediately as the main characters are family law mediators.    

Mediation is a settlement tool that everyone should know if involved in a family law dispute. Mediation can be used in divorces prior to filing a complaint to attempt to negotiate dissolution terms and avoid litigation. Mediation can be used in the same manner for custody (post-decree or initial complaint filed by unmarried couples) or establishing father’s parenting rights (in unmarried couples).

In the alternative, mediation can be used to attempt to avoid the risk and astronomical expenses of a final hearing and are used by parties as a last-ditch effort to settle a pending case months or a year after filing the complaint.

What exactly is mediation in family law? Mediation is a voluntary process that parties use to negotiate the terms of a civil case. Mediators never render a decision on a dispute but are neutral professionals that facilitate negotiations and clarification of existing issues in pending or future family law matters.

Parties must enter an agreement prior to mediation to keep communications during mediation privilege and confidential. Privileged means no one present in mediation can testify or be subpoenaed to testify as to mediation communication. Confidential means no one present in mediation is permitted to discuss mediation communications with anyone outside of the people present. There are limited exceptions to these provisions as will be discussed by the mediator, but the reason for these restrictions is for mediation to be used solely for settlement purposes and not for litigation discovery.

Parties prefer mediation over litigation for the following reasons:

  • Confidential.
  • Discussions and results are controlled by parties.
  • Saves parties money.
  • Is quicker than litigation.
  • Preserve relationships between parties.
  • Excludes children from family law proceedings.
  • Parties normally have greater compliance with mediated agreement versus Court’s litigated Order.

Not every case is suitable for mediation, BUT mediation should be considered prior to determining the best route for your family.