Divorce Process and Options in Geogia

Want it in plain English? This short video highlights the fundamentals of the divorce process and options within it in an engaging and animated way. Settlement, litigation, mediation and arbitration are highlighted.

When Does Mediation Occur in the Litigation Context?

Image  A recent article from Nevada Business addresses the nuts and bolts of a typical mediation when litigation or a law suit is involved with hard facts and some well played levity.  

In the article, the author suggests that: “Mediation occurs after negotiation has reached an impasse.”   In other words, the author is suggesting that the parties’ efforts to work out the issues on their own has ground to a halt.  This chronology is often true, but not always with respect to when mediation might occur during a litigated dispute.

Attorneys often continue negotiations on a settlement or resolution right up to the minute that the mediation appointment starts and may continue to negotiation through and after the mediation concludes.  Simply put, mediation is a flexible process that can help do many things, such as:

  • Close a deal,
  • Accelerate the negotiations,
  • Identify pitfalls or information gaps that need to be addressed before more productive negotiations can occur (e.g., obtain the video, the valuation, the statement, the record, etc.),
  • Create a temporary agreement or a partial agreement, and more.

In all, parties simply do not have to wait for negotiations to end in a stalemate before participating in mediation when litigation is involved (and courts often order mediation irrespective of where negotiations or settlement discussions are).  

Contact One Mediation’s offices in Atlanta, Georgia for more information about mediation, mediation coaching, and local mediators at contact@onemediation.com or call 404-720-0599.

Should You Defer to the Other Side’s Proposed Selection of a Mediator?

A quick “Google” on the topic of “how to select a mediator” will provide a bajillion articles…a good sample article here

Academics in the study of conflict communications and management might argue that the mediator need not understand the subject matter of the dispute (e.g., divorce, intellectual property, etc.), but can resolve any dispute by helping the parties focus on what the problem is and potential solutions.  There is truth in this stance.

Poll attorneys and many (if not most) will say that they want the mediator to know “the law” of the particular dispute.  If it is a divorce, the attorneys do not want a criminal defense attorney to serve as the mediator.  If it is a securities fraud matter, the attorneys do not want a family therapist to mediate the matter.  There is truth in this stance.

Once parties decide that they will mediate their dispute, too often they get bogged down in selecting who will mediate.  In getting knee deep in this “new dispute” of who will be the mediator, the battle of wills often is not about whether the mediator knows the subject matter or has the ability to manage conflict communications.  So, what is the right answer in this I want Mediator X; you want Mediator Y?

A heavily seasoned attorney for a global corporation spoke to the Dispute Resolution Section of the Atlanta Bar and said, off-handedly, that he didn’t really care (beyond the basics) who the mediator was and usually deferred to the other side’s desired mediator.  Why?  Two of the reasons he gave showed that he was a confident negotiator who really understood how mediation worked.

The first reason for deferring to the other side’s choice of mediators was that he could use any (any) mediator to do what needed to be done.  As a mediator, I think this statement is brilliant.  If a mediator is truly a neutral party and you are truly prepared to negotiate, you can and will use the mediator to help work with your client, to share messages with the other side, and to retrieve information from the other side, as needed.  Simply put, effectively using a mediator meant that he understood just how flexible the mediation process is and how creatively he could use the mediator (when you plan ahead or have significant experience negotiating) to get the settlement done.  Deal closed!

The second reason for deferring to the other side’s choice of mediators was that, since he knew how to use any mediator, he gained (or, perhaps, didn’t lose) a psychological advantage, if you will.  He noted that if the other side “didn’t get their way” on who the mediator was, the other party may arrive at mediation more emotionally charged than they otherwise would have been because they suffered a “loss,” even before the mediation session started.  The other party may also believe that the mediator is or will be more biased towards the other side, an opinion that may provoke the other side to be more aggressive, emotionally reactive, and ready to give up on negotiations more quickly because the odds were stacked against them from the outset.  

The bottom line is that in selecting a mediator, a factor that is often not discussed is the value of “giving in” to the other side on who the mediator will be.  So long as the mediator is worth his or her salt, deferring to the selection of the other side may be a strategic move towards setting the mediation up for success rather than failure.