June 5, 2023

What is mediation and is it required?

In family law cases mediation is a process in which the parties and their attorneys informally meet to discuss the issues in the case with a mediator, who is often referred to as a “neutral”.   Typically, the mediation is “in person” occurring in a caucus, which means that the Parties remain in separate rooms throughout the process.  In some cases, mediation is done “virtually” over the web (Zoom, Skype etc.) and neither party is physically present for the session.   Mediation is an informal process.   You are not required to agree to ANYTHING at mediation.  Mediation is nothing like court.   The mediator is not a judge.  In fact, the mediator is not even required to be an attorney.

The goal of the mediation process is to reach either a partial or full agreement concerning the issues in a case.   If the Parties resolve their issues at mediation, then the judge is not required to hear evidence in the courtroom and the judge is not required to make a decision.  Of course, judges prefer this and they REQUIRE mediation in an effort to reduce their caseloads.  Cases resolved at mediation do not require the judge’s time.  One must keep in mind, however, that nobody can be required to agree to anything at mediation.   Each Party is required to participate in the process for an hour, and after the hour has passed either side may ask to leave the session.

The mediation rules and requirements are determined on a circuit-by-circuit basis (individual counties are typically grouped together into “circuits” with other counties).   The rules and procedures used at mediation may vary from one circuit to the next.   For example, mediations are not required in contempt cases in Fayette County, but mediations are required in contempt cases in Henry County.  Also, in Coweta County a party may typically obtain a temporary hearing prior to participating in mediation, but with very few exceptions mediation is required in Spalding County before any hearing is held.

Judges typically insist on mediation regardless of whether one or both attorneys feel that it will most likely be unproductive.  Mediations are not scheduled at the option of the attorneys.  Many attorneys would probably skip the process altogether if they could.

When a case is filed the Plaintiff’s lawyer cannot even begin efforts to schedule mediation through the Alternative Dispute Resolution office until 30 days after the Defendant has been served with the filing.  Keep in mind that even after the 30-day period it often takes several weeks to get mediation scheduled, and the  ADR office has almost complete control over the scheduling and cancellation of mediation sessions.  This is often frustrating for both the client and the attorney.

During a mediation session the mediator will start discussing the issues in the case with the party who filed the case (the Plaintiff), and he or she will attempt to obtain an initial settlement offer from the Plaintiff.  That proposal is then shared with the Defendant and his or her attorney in a separate room.   The Defendant then makes a counterproposal for consideration by the Plaintiff.  This process continues back-and-forth until a settlement is reached or until an impasse (stalemate) is declared by the mediator.  The case is free to go to court for the judge to decide the issues in the event that an impasse is declared.

Why is mediation required?    Well, not all attorneys communicate well with the opposing attorney about settling a case.  Mediation ensures that there has been some effort to discuss the issues between the attorneys and their clients.  It is also the best opportunity for the parties to determine the outcome of their case without court intervention, although cases are often settled after unsuccessful mediations.

Failing to settle a case and having a judge decide the outcome can lead to both parties being disappointed.  The parties know all of the issues because they have LIVED through those issues.  A judge will merely hear a summary of the issues over the course of a few hours (at most).  It’s just not possible for the judge to fully grasp everything during this short period of time.   Judges are human, and they sometimes forget and misunderstand things during the course of a trial.

Your attorney is required to have you fill out what it’s called a “Financial Affidavit” to be used at mediation. The Financial Affidavit will be addressed in a separate article on this website.   The Financial is essentially a statement made by the client under oath, meaning that the client swears that the content of the Financial Affidavit is complete and accurate. The Financial Affidavit discloses the income, assets, household expenses, and debts of each party.

The Financial Affidavit is used in court if mediation proves to be unsuccessful.  The judge will study and review the information on the Financial Affidavit when making his or her decision about your case.   So, when your attorney asks you to provide a complete and accurate Financial Affidavit, he or she is asking you to provide information that only YOU know.   Your cooperation is absolutely required.     Your attorney can assist you with preparation of your financial affidavit, but he or she cannot pull the figures out of the air for you.

For additional information about the ADR process in the 6th District ADR Program covering Henry, Fayette, Spalding Pike, Upson, Lamar, Butts ad Monroe Counties please visit:  The 6th District ADR Program (adr6th.org

For additional information about the ADR process in the Coweta Judicial Circuit please visit:  Coweta Judicial Circuit ADR Program – Georgia Office of Dispute Resolution (godr.org)

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