Settling a Divorce Case in Mediation Does Not Mean Settling Differences

Mediation is commonly used in every area of the law. In fact, most courts require at least an attempt at mediation before a case can go to trial. This is no different in family law cases. In fact, mediation in divorce and family law cases is both required and highly effective.

Mediation in divorce and family law cases is in New Mexico generally referred to as settlement facilitation. Despite the use of the term settlement facilitation, it is often referred to as mediation so we will stick with that term here. Mediation in family courts, and in larger civil court cases, is a little bit different than what some may envision as mediation.

The goal of mediation in family law cases is to settle the case. Settling a case in family law is very different than settling differences in other mediation contexts. Some might view this as a weakness. For the most part, experienced family law attorneys view it as a strength since it leads a settlement of the case. On the other hand,, settling differences in a divorce case is often impossible and only gets in the way of settling the case.

Because the goal is to settle the case, one big difference in family law cases versus other mediation settings is that mediator/settlement facilitator is almost always a highly experienced family law attorney or retired judge with family court experience. This is similar to the State and Federal District Courts in other civil litigation where the mediators are very experienced in the area of law that is in dispute.

This is often not just extremely helpful in getting the case settled, it is essential. Divorce and family law cases are fraught with highly emotional issues. They often touch on all the hot family law topics such child custody, child support, division of income, division of property and debt, and other emotionally charged issues. Settling the case is difficult enough with all these issues. Settling differences is near impossible and the attempt alone will prevent settlement of the case

An experienced divorce and family law attorney or retired judge will keep the discussions on task. They will attempt and are often highly effective at keeping the emotional issues at bay. This is almost the exact opposite of traditional mediation where the parties are encouraged to voice their feelings, albeit in a restrained and diplomatic manner.

In a divorce case, settlement facilitation is not the place for folks to voice their feelings. The feelings have no doubt already been sufficiently voiced in the past. There is no need to rehash them in settlement facilitation. If you want to watch a mediation explode, allow one party to start bringing up the many shortcomings of the other party.

An experienced settlement facilitator will keep the parties on task. How do they do this? It gets back to their extensive experience in family law. They literally lay down the law. They vocally and sometimes forcefully explain when one party or the other is asking for something that he or she cannot possibly expect to get in court.

In short, they keep the parties focused on likely court outcomes should the case go to trial. Only an experienced facilitator can do this. After all, you cannot lay down the law if you don‘t know the law. Moreover, most people rightfully place little weight on what the other attorney has to say about what is going to happen in court.

Knowledge of the law and trust in the messenger is very important both for the facilitator and the parties. Without a thorough knowledge of the law and what to expect in court, it would be not only difficult but exceedingly unwise to settle the marital claims. And this again is why everyone has gathered for the mediation.


Related Reading:
Settlement Facilitation in New Mexico Divorce Cases: Not Only Productive but Generally Required!
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify
Legal Counsel or Not, New Mexico Marital Settlement Agreements are Typically Final!

Collins & Collins, P.C.
Albuquerque Attorneys

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