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By Jennifer Paine

Attorney, Cordell & Cordell

If you're facing divorce, then you've probably done your research on mediation and think it will be a reasonable alternative to a domestic relations trial.

In your search for information on mediation, you must likely came across these three common mediation myths:

1. Mediation is mandatory.

2. Mediation is usually expensive.

3. Mediation is just deal-making.

Previous articles have addressed the first two myths that mediation is mandatory and mediation is usually expensive.

This article will focus on Mediation Myth #3: It's Just Deal-Making.

Yes, mediation is about make a deal – a settlement agreement. However, mediation comes in several forms, and not all of them are about making a deal.

For evaluative mediation, the mediator will evaluate the strengths and weaknesses of your and your wife’s respective arguments and make a recommendation based on that mediator’s appraisal of the case and experience with the judge assigned to your case.

The mediator may issue a written recommendation, and there may be penalties (such as attorney fees) for not accepting the evaluation if a trial results in a less favorable outcome, but usually the mediator’s job ends with telling you “how it will probably be at trial.”

The point is not necessarily to strike a deal, but to determine whether you have a shot at winning in trial, then making a decision to settle based on the likelihood that you will or will not win that argument.

For facilitative mediation, the mediator's job is to help you and your wife reach an agreement regardless of what a trial judge might do. The mediator will help you overcome the pent-up emotions in a divorce and focus on the practical aspects, particularly settling your case before you spend your kid’s college fund on an attorney.

For arbitration-mediation, the mediator will make a decision, which could be binding, if you and your wife cannot reach an agreement. Although some parties and attorneys are fans of arbitration-mediation, it is not advisable when there are children or significant issues (that have not yet been thoroughly investigated) in your case.

Matters involving children are almost always subject to the judge’s approval, and you could allow the arbitrator-mediator to make a decision for your property and debts without having all of the information, which a trial judge would, to make that decision.

Moreover, while your statements to a mediator are confidential and cannot be used against you in trial, what you say to the arbitrator-mediator, sitting as a mediator, can be used against you as he or she sits as an arbitrator.

There are some good things to engaging in deal-making, however. For most counties, what you say and the documents you produce during mediation are confidential and cannot be used against you to prove liability or a reasonable outcome to your case later.

Therefore, you can be free to suggest that you take on a credit card bill to prompt your wife to settle, even if you would argue that she should pay one-half of it if your case is to go trial.

Be sure to talk to your attorney about how the confidentiality rules work in your county so you know what you can and cannot say before mediation.

 

Read the series of articles on mediation:

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.


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