Not all legal disputes need to end up in court. Sometimes, parties opt for mediation, a procedure in which an impartial third party assists the parties in reaching a mutually satisfying resolution.
“The end goal is to help the people involved resolve their dispute in whatever way is a positive resolution for them. It’s really different depending on what type of mediation it is and what the goals are for the people involved,” said Attorney Devin Hallett Snyder, a trained mediator whose law practice, Hallett Snyder Law, is based in Oakmont.
Donna Kline, a financial advisor with HBKS Wealth Advisors and a Certified Divorce Financial Analyst® and Certified Divorce Coach®, agreed. “The end goal is an agreement between two parties that they’re both comfortable with; one that is best for their family and family structure,” she explained. “It is a way to be creative, to solve the issues, particularly financial issues when parties are divorcing. They’re making their own decisions versus relying on the legal system to make decisions for them.”
There are a number of circumstances in which parties might try mediation, including disputes between employers and employees, landlords and tenants, and neighbors. Often, individuals who have a disagreement will choose mediation when the overarching goal is to preserve the relationship, as mediation is a less adverse setting than a courtroom.
Both parties need to agree to mediation; the dispute is not as likely to resolve if a party is reluctant or unwilling to try.
“Every time I have couples approach me, I speak with them independently to make sure that they understand the process and are fully on board,” said Kline. “You need two to tango in mediation. They have to be there; they must be transparent about all their financial accounts. You can’t hide money and expect mediation to be successful.”
Before the first mediation session, Snyder also sits down with each party individually to hear why the parties are there, what the issues are, and what ‘hot button’ issues might generate conflict. She added that in a divorce case, meeting with the parties separately is required in order to screen for domestic violence.
“I typically set the agenda for the first meeting, go through ground rules and some communication tools,” she said, adding that sometimes, cases can be resolved within two or three meetings.
Mediators themselves must bring certain skills to the table. Snyder says these include a willingness to learn, the ability to listen well, and the ability to not try to solve people’s problems.
“You need to give them the tools to allow them the space to talk so they can come to the resolution themselves,” she said. “As attorneys, we want to fix it, solve the problem, and tell them, ‘This is the law, this is what you should do.’ I have to wear a completely different hat in mediation.”
Even though mediation is generally less contentious than a litigation setting, sometimes tempers can rise, particularly in a divorce situation. “Everyone has an emotional tie to divorce, but it can be resolved as long as the transparency is there,” said Kline. “They are doing themselves and their children a tremendous favor to have the strength to face each other and discuss it, so I recommend everyone give it their best shot. If there’s not a safety issue, if they’re both willing, the odds of resolution are very high.”
Snyder said that she tries to keep each mediation session to about two hours. “That is about all the emotional bandwidth most people have for handling difficult situations,” she explained.
Once a resolution is reached, Snyder writes a memorandum of understanding, but she does not have the parties sign it and recommends they have an attorney translate it into an agreement with all the legal enforceability language and details their attorney recommends.
“While I am an attorney, I can’t wear two hats in the same case. In some states, attorney mediators can write the legal agreement and file it with the court, but in Pennsylvania, we don’t typically do that,” she said.
Both Snyder and Kline said that virtually all of the mediation in which they’ve been involved has resulted in a mutually agreeable resolution. In addition to the emotional benefits of having a contentious issue resolved, this can also result in financial savings.
“My goal as a financial advisor is to protect the family’s net worth; not have them spend it getting divorced,” said Kline. “It’s a financial plan we are putting together. It saves the family thousands of dollars in fees and helps with regret or anguish; they won’t feel like they left something on the table.”
“Mediation can be incredibly successful if both parties are invested, want to do it, and are willing to do some hard work,” added Snyder. “We can be very creative with solutions; out-of-the-box thinking is one of the great benefits of mediation.