Often both parties wish to avoid litigation, but they need the guidance of an experienced attorney who will act as a “neutral” professional to assist them with reaching solutions that are acceptable to both of them. Parties may not be forced into mediation – both parties must agree to this as an alternative to litigation. In litigation, the parties are often delegating their decision-making authority to the courts. Mediation is different in that the decision-making rests with the parties, allowing for greater creativity and greater certainty.
By statute, the mediation process is confidential, which means that communications created for purposes of the mediation shall forever remain confidential and will be excluded from evidence in the event that mediation is not successful. Due to this confidentiality protection, clients in mediation are often more willing to be candid with their mediator and this, in turn, allows for more flexibility and creativity. For example, parties who are mediating the division and valuation of a community-owned business, generally, are more willing to have the business valued as part of the mediation process without the fear that the valuation report will later be used against either of them in court. If the business valuation report is prepared for purposes of the mediation only, then, by statute, it is protected as confidential and will be excluded from evidence in later court proceedings should the need arise.
Two questions that often arise in regard to the mediation process are: (1) whether the parties may have attorneys if they are working with a mediator; (2) if so, whether the parties’ attorneys may attend mediation sessions. The answer to both of these questions, is, “yes.” Many mediation clients work with their own consulting attorneys who will review any proposed settlement created in mediation and who will provide independent advice to the client throughout the mediation. Whether attorneys attend mediation sessions with their client, however, is dependent on the facts and circumstances involved. Clients with more complex marital estates or other complicated issues are more likely to have their respective attorneys attend the mediation sessions. Also, clients who feel they need an advocate to assist them during the mediation process are encouraged to have their attorneys attend mediation sessions.
In addition to his family law litigation practice, Mr. Ford mediates complex family law cases, and he has earned a reputation for settling the vast majority of those cases. Mr. Boyarin’s practice also includes mediation in addition to litigation. Mr. Boyarin is the former Mediation Clinic director for Hofstra Law School.