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Family Financial Mediation

In recent years, people have been more open to mediation and other types of alternative dispute resolution (i.e., an alternative to court). There are two types of mediation in family law, but this article will address what is called Family Financial Mediation (FFM). Pitt County requires FFM before the judge will hold a trial on alimony or marital property division, called equitable distribution. In the FFM process, the parties must share the cost of a qualified mediator, who does not make a decision. Instead, the mediator joins the parties in an office of one of the attorneys and shuttles between the two offices. Because each party and his or her attorney are in separate rooms, it is much more casual than court. The mediator is a neutral party who does not take sides.

A good mediator can make both sides a bit more realistic by pointing out what he or she sees as major concerns with a case. The mediator reminds both the clients and the attorneys, who are very deeply entrenched in a case by that point, that facts are not as clear-cut as perhaps originally thought.  The mere fact that the attorneys don’t engage each other can avoid the posturing that happens in court, not to mention the stress and hurt feelings between the two spouses who don’t have to look at their ex across a table. Somehow. an ex always knows how to push buttons.

The parties who participate in FFM have the ability to make agreements they know they can tolerate. After litigating a case in court, parties may each feel like they lost because judges hardly ever pick one side. They do what they think should be done based on the law, period. The law is not very easily customized, and judges in family law cases have a great deal of discretion. At least when parties have compromised, they are assured of certain “bottom lines” that are absolute. When a mediation is successful, the parties sign the document right there, that day, so no one is tempted to change his or her mind. Trusting a judge, who is a complete stranger, to make decisions about your house, retirement, credit card debts, vehicles and other personal property is a roll of the dice.

A Quick Summary of the Differences

COURT PROCESS    vs.         MEDIATION
Judges and the law control outcome   Attorneys and clients control outcome
Takes place in court – formal   Takes place at an office and is informal
Judge makes decisions for you   You and other party make your own decisions
Risk because the judge has very broad discretion   Certainty –  avoid all the risk of court
Costly, whether you win or lose (attorney’s fees, depositions, etc.)   Less costly in the long run
Time consuming with many details   Quick because it looks at the big picture
No idea how long final result will take, often even for months after judge rules   You are largely finished the day of mediation
Decision based only on the law (not very flexible)   Decision based on what you can live with (can be flexible and use common sense)
Win/lose structure   Compromise by both sides possibly a win/win
Even “winning” takes a huge emotional toll on the entire family, including the children   Relief of being finished with a long and unpleasant legal situation
Public  forum, even with embarrassing  marital fault or child custody testimony   Private forum.  Fault is not the focus nor is it part of “the record” in a court room
Adversarial – different goals   Part adversarial and part cooperation if you have a common goal of finding solutions for the dispute
Full disclosure and penalty of perjury for testifying in court   More trust is involved. Can be more difficult to be sure of other side disclosed everything

 

FFM is a different mediation than child custody mediation.

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