The State Bar Association of North Dakota Winter 2013 Gavel Magazine | Page 22

FAMILY LAW By Sandra Kuntz, Attorney/Mediator If you would like to suggest a topic for future articles or contribute an article, please contact Sarah Barron, Chair, SBAND Family Law Section Gavel Committee, at [email protected] Conflict is a reality of our culture. No one can predict or avoid the inevitable challenges that accompany changes in our economy, business, communities, or neighborhoods. No one plans to get divorced when that wink or a smile is brewing into a relationship or the wedding bells are ringing. However as life throws us these challenges, we have choices in how we manage them. Recognizing that conflict is inevitable, one can choose to focus on the conflict as a wedge to push people apart, or a goal to pull people together. Mediation is a process for resolving conflict with a focus on mutually acceptable solutions. In contrast, the adversarial approach of litigation focuses on victory and defeat. Mediation allows the parties to maintain the control. Parties maintain the control in decision making, cooperative problem solving, and work within a neutral setting allowing better communication. A mediator can provide a perspective that an attorney cannot. For strategic reasons, evidentiary reasons, or ethical reasons, the attorney must argue for their client. The mediator is neutral and therefore can help both parties view issues from a neutral standpoint with a focus on resolving the dispute, rather than validating one party’s position and seeking to “win.” A mediator can minimize side arguments while concentrating everyone’s efforts towards a mutually satisfactory conclusion. A mediator can resolve the parties’ issues by communicating rather than fighting, working as a team, rather than engaging in battle. The mediation process is goal oriented and focuses on available factual information and assumptions regarding the future, perspectives, and options available to all participants. It clarifies relationships, promotes understanding of established objectives, and assigns specific responsibilities, tasks, and time schedules to define and review progress. The mediator helps establish the ground rules for the mediation sessions, maintains the participants focus, and MEDIATION - PROBLEM SOLVING FOR ALL TYPES OF CONFLICT services. Mediation can often offer solutions to avoid these costs. Mediation services are available privately and through various State sponsored mediation programs. The North Dakota Family Mediation Program provides six-hours of mediation for families with cases involving custody or parenting time filed with the Courts. The Department of Agriculture Mediation Service provides mediation involving agricultural producers, as well as issues surrounding oil and gas development, surface damages, pipeline and road easements, reclamation, dust control, loss of production, deer depredation concerns, and a growing number of other issues. There is faster resolution. With resources in Western North Dakota stretched beyond their capacity, the wait for legal services and access to the Courts are backlogged for months. Parties set their own time frame for resolving issues, without having to wait months for the next court date or for a time when two lawyers and the Court can coordinate their calendars. It is possible to resolve issues in a matter of hours instead of years. One of the worst parts of any litigation is the anxiety brought about by living with unresolved, lingering issues for a prolonged period and by having to remain attached to a problem rather than working towards a solution. There is greater confidentiality. Communications, documents and work notes made or used in mediation are privileged and confidential. Meetings are private and at the mediator’s office (or even held via Skype or conference call). Litigation in a Court requires the parties to argue their case in a public courtroom in front of a judge, officers and court employees as well as other litigants and attorneys. It is often very uncomfortable to have financial circumstances and family problems discussed in a room full of strangers, or in front of neighbors and other people in the parties’ community. The parties control the discussion and the outcome. The parties choose the topics that they want to discuss and settle. The parties, not a judge or jury, have final say over the terms of their agreement. Important decisions about the parties’ property, business operations, and encourages participation to be creative. The mediator leads the mediation process, provides suggestions to move forward, finds and defines points of consensus, restates comments and ideas through active listening, and maintains the climate of the meeting. Mediation takes time and commitment from all involved. Since the parties control the results of mediation there is generally much greater satisfaction with the results obtained than is the case for litigation through court or administrative processes. Mediation can be used for all types of conflict including divorce and family disputes, s