If you watch television, you may have heard of the show, Cobra Kai. The show brings back original characters and teachings from the legendary, Karate Kid. Personally, I have never been much of a TV buff, but my husband recently got me hooked on Cobra Kai! In one of the latest episodes, middle-aged Sensei, Johnny Lawrence, learns to speak teenage lingo in order to convince a high school female to join his karate dojo. I found myself laughing out loud during this scene, and then my attorney brain took over. Like our ever-changing country and world at large, we are consistently forced to adapt to new laws; to pivot regardless of how strange or awkward it feels.
Family law is an area which is seeing a great deal of change. In Iowa and Nebraska, recent revisions to the Child Support Guidelines were made. Likewise, South Dakota is very close to passing a law which will substantially reform the state’s Parenting Guidelines. The pending and recent revisions to family law statutes is a good reminder of the importance of mediation. In fact, in January, 2022, the Iowa Supreme Court signed a Court Order requiring mediation or judicial settlement conferences in family law cases where at least one party is represented by an attorney.
Mediation is a confidential process in which a neutral third person (generally an attorney) helps the parties resolve their dispute in an informal and consensual manner. The mediator is a mutual facilitator who assists the parties to attempt to reach their own settlement. Unlike a Judge, the mediator does not make decisions about “right” or “wrong”, nor tell the parties what to do. Mediation is likened to Mr. Miyagi and Daniel LaRusso’s karate style – attempt peace first. Like the recent season of Cobra Kai shows the audience, competitors sometimes need to team up in order to prevail. Following are a few things to keep in mind if you find yourself headed into a family law mediation:
- Make a list of all the issues you would like to discuss. If you take your case to trial, it is extremely unlikely the Judge will address all issues you think are important. Rather, the Judge will only address the legal issues at hand. A significant advantage to mediation is that the parties can craft an agreement which addresses their unique family and the issues each party desires to resolve.
- Bring supporting documentation for all issues you want to discuss in mediation. Unlike when you’re testifying at a trial, you can bring to mediation your notes and any documents you think might be useful.
- Use your time and money effectively by consulting with your attorney before and in between mediation sessions. While you are well aware of the personal issues and facts, it is very helpful if you rely upon your attorney to fully understand the legal issues so you are prepared to make informed decisions at mediation.
- If you reach a tentative agreement, you may not sign it there. If that is the case, be sure to take a copy home and review it in detail with your attorney. It is not uncommon for people to return to mediation to continue settlement discussions. Even with multiple mediation sessions, the cost of mediation is far less than trial.
- If you are afraid to be present with the opposing party or fearful to speak up or disagree with him/her in mediation, tell your attorney and your mediator. Special arrangements can and should be made in this situation.
In the past fifteen years, I have mediated several cases and served as an attorney representing clients at mediation which I anticipated could not be mutually resolved. Thankfully, I am consistently surprised at how many highly contentious cases are solved at mediation. In general, it is estimated more than 70% of cases reach an agreement on some or all issues.
Divorce and child custody trials are long, expensive, emotionally draining, and highly unpredictable. Rarely, even with a “great trial,” do parties feel like they’ve won in a family law trial. As such, family law clients are well advised to at least attempt resolving some or all of their contested issues at mediation. Mr. Miyagi must be smiling down on us knowing his teachings (wax on / wax off) continue to motivate the legal community!
The information contained above is for informational purposes only, and is not legal advice or a substitute for legal counsel. You should not act or rely upon this information.
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