When two parties wish to resolve a dispute without taking it before a court, they have the option of entering into mediation.
What is mediation?
Mediation is a form of alternative dispute resolution (ADR) where a neutral third-party, the “mediator,” meets with and facilitates settlement discussions between two parties. Both parties also consult with their lawyers throughout the mediation process.
While not required to be so in Georgia, most mediators are licensed attorneys who have been practicing law for several years and has gone through extensive training.
Mediation can be used for many types of cases, such as divorce and family disputes, workplace disputes, and contract disputes. In family mediation, both parties can constructively discuss issues such as:
- Establishment of paternity
- Child custody, support, and visitation
- Spousal support
- Division of property
The American Bar Association provides this example explaining mediation:
“Here’s a classic example of how mediation works. The kitchen has one orange, and two cooks need it. One cook wants orange juice for a fruit drink and the other needs orange rind for cake icing. The mediator helps them discover their real interests (orange juice and orange rind) as opposed to their stated needs (the orange). The problem can be reframed into “who gets the orange at what time.” If the second cook gets the orange after the juice has been squeezed out, both can satisfy their real interests.”
You can use mediation either before divorce (to create a marital settlement agreement) or after divorce (to resolve any disputes that arise under a marital settlement agreement).
Why choose mediation over litigation?
Parents in the process of separating may take to mediation if they cannot agree on matters pertaining to their children, such as child support, custody, and visitation. Although mediation is designed to allow parties the opportunity to settle their differences without the intervention of a judge, it is generally advised that those seeking mediation enlist the help of an attorney. While your attorney will not be as involved in mediation as they would be in court proceedings, he or she will keep a keen eye on what transpires during each session and will provide you with valuable advice regarding every decision you make (or even think about making).
What the benefits of mediation?
In Georgia, over 93 percent of all filed divorces are settled prior to trial. Most judges in Georgia require that parties attend a mediation session because of the limited number of judges available to hear trials and the large number of pending divorce cases.
While some Georgia divorces may lead to a trial, going through the mediation process is often the better option. Some of the benefits of mediation include:
While taking a case before the court is a great way to receive an impartial verdict from an informed legal mind, it can be extremely expensive, with even the most straightforward court proceedings requiring those involved to spend several hundred dollars before justice is served. Mediation is significantly less expensive than the courtroom alternative and eliminates any risk of a party who is clearly in the wrong winning the case simply because they secured a more skilled team of attorneys.
When you take a case before a court, you are left with little choice but to discuss all aspects of the dispute and its cause before a room full of spectators, which more often than not leads to the details of the case becoming public knowledge. Mediation, for the most part, doesn’t see anybody beyond the disputing parties and the assigned mediator in a room together at any one time. On occasion, attorneys may be present, but they are bound by confidentiality agreements, as are all others involved in the mediation process.
Many people shy away from mediation as they believe the terms agreed to throughout the process are nothing more than a verbal contract. The most distrusting among us insist on taking their case before a court so as to minimize the risk of the opposing party backing out of the agreement once mediation has been completed. Contrary to popular belief, all agreements reached during mediation are legally binding as long as both parties sign a contract making them so. All paperwork presented during mediation should be read and, if necessary, altered, by your legal team.
For those wishing to bring a legal dispute to an end without the lengthy and complicated process of court intervention, mediation is arguably the best route available.
When should you not use mediation?
In Georgia, all cases involving contested custody or visitation matters are referred to mandatory mediation. However, if there is a history of domestic abuse or allegations of abuse, the court will not refer mandatory mediation. You should not use mediation when there is evidence of domestic abuse because there must some degree of trust between parties.
How does mediation work in Georgia?
In many Georgia counties, both parties are required to attend mediation prior to any final hearing or trail if they unable to reach a settlement agreement.
When parties cannot reach an agreement, parties can participate in family mediation at no cost on the day they report for their 30, 60, or 120-day status conference. The Georgia mediation process takes 1-3 hours. In general, the process involves the mediator meeting with both parties in the same room and having each side present their views on family issues. Both parties are usually represented by their own lawyers. After both parties share their views, the parties will go in separate rooms; the mediator meets with both parties individually and negotiates an agreement. If mediation does not end in an agreement, the litigation process will continue. Parties are not required to enter into any agreement.
Call today for a free consultation
Attorney Caryn Fennell works with clients both prior and during mediation to ensure the process yields the best possible result for them. Having worked extensively on mediation cases, we recommend mediation to all parties who believe they may be able to resolve their issues outside of court. Call our firm today for a free consultation at (770) 479-0248.