You have just been served with papers for divorce. Your mind immediately envisions scenes from War of the Roses or Kramer v Kramer. This vision you have may not happen in southeast Michigan. Most divorces in southeast Michigan are not resolved by the court, but rather by the parties during mediation. In Oakland County, parties are required by the court to attempt mediation with a trained mediator before proceeding to trial for divorce.
In 2018, there were more than 3,200 divorces filed in Oakland County. Currently, there are six judges sitting on the family court bench. This means that each judge is handling roughly 500 new divorce cases per year. If every case was resolved though the court process alone, a divorce could take years to finalize. However, mediation allows the court to handle this many new filings and gives the parties final say over the terms of the divorce judgment.
Mediation is a form of alternative dispute resolution that can resolve a divorce case outside of the court process. Mediation involves the use of a third party who is neutral, referred to as the mediator. The mediator is trained and often will be another attorney who has practiced in family law. The mediator is familiar with the local judges, how the judges will typically rule on a given issue, and what relief the judges typically does not grant. The choice of the mediator is often agreed to by the parties or their attorneys. If the parties cannot agree on a mediator, then the court will select a mediator from a blind draw for the parties. The cost of mediator’s fees is typically shared equally by the parties.
Mediation can occur in many ways or forms, but the most common used in southeast Michigan is facilitative mediation. The mediator may have both parties and their attorneys in the same room or may have them in separate rooms. The choice of how the mediation occurs is determined by the mediator in advance of the parties’ arrival. Both parties present their issues in a written brief called a mediation summary. This is often prepared by the parties’ attorneys and present one party’s positions and requests for relief to the mediator. After considering both sides, the mediator makes suggestions to each side on how the issues can be resolved. Reaching a resolution on the issues at mediation is voluntary. Neither party is required to agree to the mediator’s proposal.
One reason that parties prefer to mediate a divorce to a final resolution is that mediation is cheaper than litigating the matter through a trial. There are other reasons such as giving the parties control over the terms of the judgment that will benefit all family members. Other reasons include that the proceeding is less formal than trial, the proceedings are confidential, and the conflict experienced early in the process is diminished as each party is heard and able to express their concerns.
However, mediation is not always right for everyone. If one spouse is hiding assets, then mediation would not be ideal. The court may determine after a hearing that mediation is not appropriate for the parties when domestic violence is present. Mediation may not be appropriate when one party is using fear, threats, or intimidation to achieve desired outcome or prevent the other party from freely communicating.