MEDIATION

This approach can involve a mediator who is an attorney or a non-attorney and can be used as an early intervention tool, as a last ditch effort to resolve a case that is set for trial, or anywhere in between.

The role of a mediator is to remain neutral and to assist the parties in reaching a private settlement.  If a non-attorney conducts the mediation, that mediator may not recognize the legal issues or know the law.  If a party does not consult with an attorney or have an attorney present, he/she may make uninformed decisions.  
An attorney serving as the mediator cannot provide legal advice to a party, but a qualified attorney mediator should know the legal issues involved and be able to guide the discussions. In this model, both parties will need to consult with an attorney during the process and have an attorney review the legal documents if they are prepared by the attorney mediator. 

One advantage of face-to-face mediation, with the assistance of an attorney or a non-attorney mediator, is that the parties gain some skill and insight into negotiating with one another in the event issues arise in the future.  Those tools can be especially helpful if they have children.

Caucus style mediation is very commonly used when cases are on the litigation track.  In many areas, courts have enacted local rules that require parties in family law cases to attend mediation before trial.  It is also very common for the mediator to be an attorney, and in this style of mediation both the parties and their attorneys are present.  They may or may not all meet together in one room at the outset of the mediation session for introductory remarks by the mediator, but very often emotions between the parties (and sometimes between the attorneys) are so high that everyone agrees that each side will stay in separate rooms.  Then the mediator shuttles between them (hence the term “shuttle diplomacy”), transmitting settlement offers and nudging the parties to, hopefully, reach an agreement.  Many times these mediations will take place in one long marathon session, and only after the parties have already spent much time, money and emotion battling each other.  Sometimes the pressure to settle in mediation at this juncture can feel coercive.  Also, in the caucus style of mediation, the parties do not get the experience of negotiating face-to-face using skills that might help them resolve issues that could arise between them in the future.