Assuming that you did not come to this website looking for an academic discussion of alternative dispute resolution, let us share with you what we have learned about mediation from a practical, in-the-trenches perspective.
If there is one word that best captures the concept of mediation, it is “Opportunity.”
- It gives you an opportunity to take control of your situation rather than putting it into the hands of a stranger to decide;
- It provides an opportunity for you to resolve your conflict as efficiently as possible, conflict that could otherwise drag on and have a devastating financial and emotional impact on you and your family;
- It allows you the opportunity to rebuild and move forward.
Many people come to mediation believing that their case cannot be resolved. They are frightened, confused, wounded and sometimes very, very angry
Mediation is perfectly designed for people who find themselves in this situation.
Sometimes, mediation is the first time that the parties have communicated since separating. It is a setting in which you can vent frustrations and express feelings that would be inappropriate in a courtroom. It allows you to seek answers that litigation might not provide. In other words, it is a place where people can be human in an otherwise dehumanizing process. Mediation gives you the opportunity to be heard, perhaps for the first time. It brings a painful chapter to a close and lets you begin a new and better one.
Something indescribable occurs when people who are at odds with one another begin to recognize the possibility of resolution, not just a cease-fire but a peace treaty. It is the moment when hope begins to replace the negativity that too often drives litigation to the point of destructiveness.
Getting to this point requires the parties to suspend their disbelief for a brief time. A little bit of effort complemented with a little bit of trust in the process usually brings relief and resolution that seemed even hours earlier unattainable.
No Way We Are Getting Anything Resolved Today:
A couple that had been married for many years came to mediation by order of the family court. Neither wanted to be there. As soon as David, who is a very serving mediator, went into the room where the husband and his attorney were, the husband got out his check book and had the following exchange with the David:
John: “How much do I owe you?”
David: “What do you mean? We haven’t even gotten started yet.”
John: “We may as well get this over now. There is no way that anything is getting settled today. I’m only here because the court ordered me to be here.”
David: “Well, it has been about 10 minutes, but I will need at least another 5 minutes to complete my report to the court.”
John: “What report?”
David: “Oh, I have to file a report with the family court. This will have to say that you did not participate in mediation in good faith. I hate to do that, but I am required to accurately report what happened. I will say that it is likely to reflect negatively on you as far as the court is concerned.”
John: “Well, hold on now. I don’t want that. Maybe I can be here for a little while.”
David then went into the room where the wife and her attorney were. It must be true that the longer people are married, the more they resemble one another because he proceed to have an almost identical exchange with the wife.
A few hours later, in spite of how the day started, the parties resolved all issues and left with an agreement.
Just Answer One Question for Me:
In a case involving a 40-Year marriage, the parties were able to reach an agreement on all issues with minimal effort. As is customary, David worked with the parties’ attorneys to draft a summary of the agreement for the parties to sign pending execution of a formal agreement to be approved by the court. When it came time for the wife to sign, she refused until the husband answered the question that had troubled her the most: why did he leave her? David returned to the husband let him know of her demand. The husband explained that he left his wife because he could no longer stand her constant criticism. David relayed this to the wife as delicately as he could. The wife was satisfied that her question had been answered and signed the agreement.
Dodging a Bullet:
Divorced parents of two minor children came to mediation after the mother filed a motion to hold the father in contempt for failing to pay his share of the children’s medical bills and extracurricular activity expenses. The father did not have an attorney and was deeply frustrated by what he believed were efforts by the mother to harass him. Through the mediation, it became clear that these parents needed clearer guidelines for sharing the children’s expenses. The parties were able to agree upon a framework that gave the father more notice of expenses and gave the mother a predictable way to share these expenses. What could have resulted in civil contempt for the father and increased attorney fees for the mother instead brought the parties to higher level of cooperation.
A young, unmarried couple had a child together. Their romantic relationship was on-again/off-again. Each had obtained against the other an Emergency Protective Order based upon allegations of domestic violence. An EPO is a temporary order that is entered pending a full hearing, after which the court will make a finding as to whether domestic violence has occurred and then enter a final order based upon that finding. There are many negative consequences from entry of a domestic violence order. Recognizing the potential for the situation to cause serious problems for their clients, their lawyers suggested an emergency mediation on the Saturday before the DVO hearing was scheduled to take place. The parties were ultimately able to work out their disagreements and avoid entry of a DVO against either of them. More importantly, they were able to continue to co-parent their child with minimal disruption.
Here’s the bottom line: mediation works.
C. David Keen, Partner
David Keen leads CSA’s mediation practice out of our Kentucky office. When he graduated from law school in 1992, alternative dispute resolution was a relatively new concept. Since that time, mediation has become fairly commonplace and, in David’s view, is the most effective means of resolving legal matters.
David has now mediated nearly 400 cases, with the majority of these being family law matters. It is impossible to calculate the amount of money that the participants in those mediations have saved. It is even more difficult to measure the amount of good will that participating attorneys have generated by helping their clients achieve prompt and inexpensive resolution of their cases. This much can be said: mediation works and it is the closest thing to a win-win situation that you will ever find in the context of a disagreement that has escalated to the point of litigation.
Ashlea Shepherd Porter, Partner
In 2012, Ashlea opened her own practice in Bowling Green. Since then, Ashlea has focused on serving families in adoptions, divorces, domestic violence proceedings, and dependency, neglect and abuse actions. Ashlea also serves as a private mediator, and donates her time to the Pro Bono Mediation Project in Warren County for families who are unable to afford the mediation process.
Most recently, in 2017, Ashlea joined Crain | Schuette Attorneys and has expanded her areas of practice to include criminal defense, personal injury, product liability tort actions, and general civil litigation.
Brian L. Schuette
Brian Schuette is a seasoned civil litigator with over 25 years of law practice experience. He is AV-Rated by Martindale Hubbell.
As the managing partner of the Kentucky office of CSA, Brian oversees the firm’s personal injury and general civil litigation practice. He has handled many wrongful death and serious personal injury cases, including motor vehicle collisions, slip and fall, product liability and dog bite cases. The majority of Brian’s cases come from client or attorney referrals.
Brian is trained as a mediator (Rule 31 Listed in Tennessee) and Christian conciliator (alternative dispute resolution for churches and church members). This training has been a useful tool for Brian as he works with individual and business clients to achieve excellent results as efficiently as possible.