If you are divorcing, modifying, legitimating or otherwise find yourself before a judge on family law matters in Georgia, you will most likely be ordered to mediate your case prior to being allowed a final hearing. In recent years, there has been a consistent trend toward encouraging parties to resolve their family issues outside the courtroom.
This is not a bad thing.
Mediation gives the parties the reins and allows them to decide how the assets will be split, who the kids will live with during the week, or where the kids will be exchanged. It is not uncommon to hear Judges enthusiastically encourage parties to settle their differences and control their own destinies. Judges are more than happy to decide who gets the china and who gets the towels, but they can’t guarantee that either party will be at all satisfied with the results. In fact, both sides are far more likely to be furious with a judge’s ruling than if they negotiated a deal on their own.
Generally, mediation begins with all parties in the same room. If each party is represented, there are five individuals involved during mediation: 1) the mediator, 2) the Plaintiff, 3) Plaintiff’s Attorney, 4) the Defendant, and 5) Defendant’s Attorney. The mediation opens with each party presenting their positions on each issue to the mediator.
While it is possible for all parties to remain in the same room throughout mediation, more often than not, the mediator suggest that the parties caucus. To caucus means that each side is allowed the opportunity to speak with the mediator in a closed meeting without the opposing party present. This gives each side the freedom to reveal material they feel is pertinent to their case while protecting that party from compromising their legal strategy should the mediation not be successful.
The mediator typically will travel back and forth between rooms presenting offers and counteroffers of settlement in an effort to help the parties move closer together. If space is limited, one party may be asked to leave the room while the other caucuses with the mediator and vice versa. If you ever need to speak with your attorney alone, you will be given the opportunity to do so.
The mediator’s role is to remain neutral, to facilitate communication between the parties, and help the parties reach a settlement. The mediator will not decide how the issues should be resolved, but he or she may offer an evaluation of the merits of certain claims or defenses. The mediator will also discuss how realistic your position is and how a judge is likely to view your side of the case.
If you do not reach a settlement at mediation, negotiations do not have to cease. Your attorney may continue to negotiate until the day of a final hearing.