Is Mediation Better Than a Court Setting for Determining Custody?
Mediation is a non-court environment. It does not adhere to the formalities of a courtroom. What you have are two rooms for each of the parties. You will witness some form of shuttle diplomacy to get two parties to reach a consensus. Mediation has the advantage of keeping the lines of communication open. It is most often child-centered in its approach. Complicated cases where parties are drawing lines may not work in mediation. Parties in these cases are not in the proper frame of mind to come to an agreement. Is mediation better than a court setting for determining custody?
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The average age of the grooms getting married for the first time was 25. Then it was 37, then it was 43. The average marriage for men in their first marriage lasted 10 years, 4 months, before ending in divorce. For women, it was 10 years and 5 months. Men’s divorce rates from first marriages were 67.7% while women’s divorce rates were 66.4% in 2015. Children under the age of 18 are involved in one out of every three divorces. In fewer than 20% of divorces, child custody is decided. About 97% of cases in Michigan are resolved out of court. This means more than 90% of cases did not end through a definitive decision from a Michigan court. Mediation can only take place if both parties are willing to negotiate across the table. At times parties involved will not set aside differences even for the sake of their children. So much pain is involved. Too much animosity is getting in the way of agreement. Parties cannot resolve their issues on their own. They end up giving it to the person wearing the black robe. The man in a black robe won’t make a decision unless there are witnesses. Those witnesses have to be cross-examined. Pleadings have to be filed. Appropriate procedures have to be followed. Then the court makes a ruling. It’s a long process. A tedious one. Mediation is an option to resolve issues faster. Get a resolution cheaper. It’s not always practical but it is an option.
What is mediation?
Mediation is an optional out-of-court process. An agreement between two or more parties is facilitated by an impartial third party. The impartial party is called the mediator. In child custody disputes, mediation is an option. It is a more effective method of settling disagreements. Compared to going to court, it is less expensive. The Friend of the Court or FOC offers mediation to child custody cases. The FOC will not refer a custody case for mediation if the parties are not willing to go through the process. The process starts with an intake interview with the mediator. Here are some additional details about the mediation process in Michigan:
Mediation is voluntary.
The key idea here is the agreement to take part in the process. Anyone who wants a dispute settled must agree to take part in the resolution. If the person shows up but does not contribute to the process, then that person is not there to resolve the issue. That’s the reason the commitment to cooperate is asked before the start of mediation. Both parents must agree to participate in mediation before the process can begin. If either parent is not willing to mediate, the case will not be referred to mediation.
Mediation is confidential.
Anything said in mediation cannot be used in court. This includes the discussions that take place during the intake interview. This also covers notes in the individual caucuses and the joint sessions. Confidentiality is important. It brings an element of trust into the process. It allows the parties to speak freely. Discuss openly their concerns. Articulate their hopes for their children. Confidentiality preserves the relationship. When parties know their words will not be used against them, they will be more respectful. It makes it easier to collaborate. Talk and play with ideas to arrive at a resolution.
Mediation is not binding.
Participation in mediation is voluntary. Parties are not required to agree to anything that is proposed in mediation. Parties may not be willing to make concessions. They may never find common ground. Even if an agreement is drafted one party may not agree with the terms. Parties unable to reach an agreement are free to go to court. A judge will end up making a decision for everyone.
Mediation can be used to resolve any type of dispute. We hope this article does not give you the impression that mediation is specific to child custody. It is not. Mediation is also employed in other domestic disputes. This includes child custody, visitation, and support. Mediation can be a helpful way to resolve child custody disputes. It allows the parents to work together to find a solution that is in the best interests of their children.
How much do you understand about mediation in Michigan?
You might think about trying to address the issue through mediation if you and the other party are at odds. You’re considering or have already filed a case in court. You should discuss the possibility of mediation in your case with your lawyer if you have one. The mediation procedure is easy to use but quite powerful. Parties begin by outlining their respective positions with the assistance of a mediator. A mediator can be present virtually. The mediator assists parties in determining the problems that, if resolved to their respective satisfactions, would end the dispute. The mediator assists the parties in putting their agreement in writing. Assist in the preparation of any documents that must be submitted to the court in order for the matter to be resolved. Parties often do not need to return to court once they reach an agreement on their own. You only need to present the required paperwork to the court. About 30,000 people choose mediation services provided by neighborhood conflict resolution centers in Michigan to settle their problems. As opposed to going to court or having a trial. The Michigan Supreme Court provides financial support for the facilities. A court may require litigants to pursue mediation. Once the mediation process has started, achieving a settlement is entirely up to you. You still have the same rights accessible to you. Even if you are unable to come to a consensus as if you had not taken part at all. The mediators have undergone intensive training programs approved by the State Court Administrative Office. They don’t explain how powerful or weak their argument is. They don’t offer advice. They also don’t offer legal counsel. The mediators are skilled at assisting the parties in developing an amicable resolution on their own.
How do you know if a child custody case can benefit from mediation?
You might want to quiz yourself if you’re a fit. Mediation is not for everyone. There are certain expectations before you can think of mediation as an option. There’s a neutral party involved. You need to work with this third party. Find out first if mediation will work for you. Here are some questions to ask yourself:
Are you and the other parent willing to take part in mediation?
Mediation is a voluntary process. The Friend of the Court or FOC helps parties use mediation services for child custody cases. Spouses unwilling to cooperate should not choose mediation. People who are not willing to collaborate may not also be the talking kind. It will be pointless to even start the process.
Are you able to communicate with the other parent?
Mediation is a communication-intensive process. There’s a lot of talking going on in the literal sense. Not only talk but talk with respect. Listen to each other’s concerns. Listening to object to an idea will not work in this process. You need to listen to understand. When you understand someone’s position you are more inclined to compromise.
Are you willing to compromise?
Look at compromise as moving small things aside so you move to bigger things faster. There are things in life not worth fighting for. Check if whatever is on the table is going to make life better for your children. If it does not, it should not even be a talking point worthy of your checklist.
There are so many kinds of divorce as there are reasons for ending a marriage. Be assured that there’s hope for you to get a less contentious divorce. Most cases don’t even get through the formal process of litigation. They are settled often out of court. Mediation is one of these out-of-court processes. You have to be a fit for this process to get a successful outcome.
How is the mediation process practiced in Michigan?
Mediators may tweak the process a little based on their experience and the case. Mediation subscribes to a process as follows:
Intake interview.
An intake interview with the mediator is usually the first step in the mediation process. The mediator will discuss the case with the parents and their counsel. The mediator will also go over the mediation procedure with the parents. Respond to any queries they may have.
The mediator meets with each parent individually.
The mediation proper follows after the admission interview is over. Each parent will first have a private meeting with the mediator. It’s called a caucus. The mediator will talk about the parent’s objectives and case interests at the caucus. One parent may be concerned more with getting primary custody. The other parent may be more interested in the parenting schedule. The mediator will also make an effort to assist the parent in identifying any possible areas of compromise.
The mediator then meets with the parents together.
The mediator meets with the parents together. Parents usually will have an awkward moment of talking to each other. These parents may not have talked to each other for a while after one filed the divorce papers. The mediator will ease the dialogue to get them talking again. The intake interview would give the mediator a starting point for the talk. Once communication starts the mediator will steer the discussion towards discussing solutions. Agreements will start to form. The mediator will make sure the discussion will focus on the welfare of the children. The mediator can help with creating a parenting plan.
The mediator helps the parents to explore potential resolutions to the dispute.
The parties in a divorce are often too emotional to think with clarity. A neutral party must be a go-between party. The mediator is the neutral party in the position to identify common ground. The mediator is not emotionally invested in the case. Only the mediator will be objective enough to steer discussions. Lead the discussion to a resolution common to both parties. Perhaps one parent prefers to reside in a different city. The mediator could assist the parents in coming up with a solution that will benefit the child. The mediator can assist the parents in having more productive communication. Acquire the ability to resolve disputes in a positive way.
The mediator assists the parents in coming to a decision that is in the child’s best interests.
Discussions can go astray in the shuttling from one discussion point to another. Parties start to forget they are discussing child custody. The mediator keeps the discussions focused on the best interest of the child. It helps parents to make decisions that are in the child’s best long-term interests. The mediator can help the parents understand the legal options available to them. Make informed decisions about their case.
The judge may order you and the other parent to take part in an alternative dispute resolution (ADR) procedure in an effort to resolve your case. You can choose to have a mediation with a private mediator. This can be another Friend of the Court meeting. You and the other parent may be unable to come to an agreement. You may end up in a custody hearing in front of a judge. It is challenging to advocate for oneself during a custody court.
Are there other approaches to settling custody disputes in Michigan aside from mediation?
Yes, there are other approaches to settling custody disputes. Michigan offers other remedies aside from mediation. Some of these approaches include:
Collaborative law.
The “team” philosophy underpins collaborative law. All parties must work together to establish a compromise. Both spouses must concur on the specialists’ objectivity in the procedure. This is very important when there is a custody dispute. The group will consist of accountants, child psychologists, and real estate appraisers. Some couples may feel better with a lawyer advocating for them.
Arbitration
The resolution of a dispute can be agreed upon by the parents and a neutral third party. The arbitrator, a neutral third party, renders the final judgment. Another option for resolving a conflict without a court appearance is through arbitration. Both speed and cost may be reduced. Arbitration must be approved by everyone. Most often, this is written down. In arbitration, the decision is frequently final.
Litigation.
When mediation and arbitration are no longer options, the parties will have to go to court. They will litigate their case. This is a process where two or more parties involved in a dispute go to court. You’re now asking a judge to make a decision about the dispute. The judge’s decision is binding on the parties. It demands compliance. Litigation is a more formal and adversarial process than mediation or arbitration. It can be more expensive and time-consuming.
The mediator is not your attorney.
Your mediator won’t advise you on legal matters. They can’t act as your attorney. Many mediators are not attorneys. You might not need a lawyer after mediation. You should still talk to a lawyer. They can assist you in comprehending your legal options. Understand the implications of choosing to resolve the dispute through mediation. You can always negotiate a resolution to your legal disagreement at any point in the process. You don’t need a mediator to conduct this outside of court. You and the other party may negotiate verbally, over the phone, over SMS, or in writing. Since each mediator sets their own hourly rate, the price can differ.
There are Community Dispute Resolution Centers (CDRC) in many counties, and their fees may be on a sliding scale. The judge will probably demand that each side foots half of the bill. You can ask the judge for a free or inexpensive mediator if the judge mandates mediation but you are unable to pay for one. Not all counties have free or inexpensive mediators. The best approach to settling a custody dispute depends on a lot of things. You need to communicate. It can be difficult when you are in pain and angry. Compromising may be difficult with someone you feel has wronged you. You need to have a level-headed person talk you through your next step. Your decisions will affect not only you but also the children. Be reflective in your choices. There’s always a Michigan child custody attorney who can explain your options. Talk to one.
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