Posted by Cindy Best on February 25, 2022

Why Is It Important For My Mediator To Be An Attorney?

We believe that it is more beneficial for your decision making, solutions, and strategies in mediation if your mediator is an attorney. Our experienced mediators are all licensed attorneys who have practiced family law. Arizona attorneys know the law, know what judges are deciding and know the creative differences between what you can expect in court and how that risk and reward factors into mediation decisions. We do not give you legal advice in mediation but we can guide you about the applicable statutes and governing law. Meditations allow for creative solutions but knowledge of basic rules and law should govern your strategy to know what you are able to do in mediation that you could not do in court. Attorneys also respect the mediation process and know the downsides and expense of litigation and recognize the benefits of mediation.

Your House

For instance, in court a judge is very limited in what he or she can order for the community house if there is a dispute. Why does that matter in a mediation? It factors into the thought process because if one spouse believes that a judge will award him the house in court, he might be less likely to settle a house dispute in mediation. In fact, as practicing attorneys we know that a judge will almost always order the family home be sold and the net equity be split equally if the parties cannot decide how to divide it. If the spouses know that mediation is the only way that one of them can keep the house, they might be more likely to figure out a way to split it by one spouse buying out the other spouse or having one spouse equalize payments with other assets to “buy” the other spouse’s equity. How to split the house is a common issue in mediation and in litigated divorces.

Child Support And Parenting Agreements

Attorneys also know what a judge is likely to order with regard to child support. We regularly calculate child support according to the guidelines and know when and if the court is likely to ever deviate from the worksheet. We also know how to handle self employed parents since there are guidelines that outline all these issues. Sometimes child support is straightforward and oftentimes there are hiccups. It is important to know about the Clearinghouse and how to get paid. It is also important to know how the court will prorate extracurricular activities. Once child support is determined, it is important to be given options for parenting time schedules and how to calculate holidays and vacations. The court follows certain protocols for all of this that can either be used as a guideline or followed in mediation. But if one parent wants every Christmas, it is important to understand that a court will not allow that but instead will order that the parents share that holiday.

Division of Assets and Debts

It is important to understand the law of community property, sole and separate property, commingling and how to divide the debts. For instance, school loans obtained during the marriage are legally to be divided 50-50. That legal result in a trial seems counter intuitive. But nonetheless, that is how it is done. That does not mean that that is how it will or should be done or can be done in mediation but it is a starting point for discussion. Also, all debts are to be divided 50-50 and that is what a court will order. In a mediation, however, usually the person who is worried about the debts being paid timely will want to assume that debt and set it off from some other asset. For example, if there is a credit card debt in wife’s name alone and the husband has never handled finances. Wife might be worried about her credit and she will want to pay 100% of the debt. The credit card company will not care that the husband has been ordered to pay and they will attempt collection from the wife since the card is in her name and she is employed. The court/judge will not be able to consider all these factors usually and will just order that the law requires and order that each party is 50-50 responsible. In meditation, the spouses can decide otherwise to protect the wife’s credit and make an agreement that reflects the reality of what is going to happen with that debt.

Consequences

As practicing attorneys, we often see problems and issues that come up post divorce. We have seen problems in litigation cases that have resulted from decisions and documents that might have been able to be done more completely or differently. Because we have seen these mistakes, we are also better able to anticipate these kinds of issues and do our best to be able to prevent us from making those same mistakes. Also as practicing attorneys, we attend mediations on behalf of our clients that are involved in litigation and we have seen many mediation styles and personalities which have shaped how we conduct our mediations. We were able to take all the positives from our learning experiences of meeting retired judges and retired attorneys who conducted mediations. Now that we meet our clients without attorneys, we are very well aware of their fears, concerns, anxieties and we address them to make mediation a better experience for them.