Do I Have To File A Case In Family Court First To Go To Mediation?

Answer: No.

In a previous post I explained how and why it makes sense to get a civil dispute into mediation to be resolved before ever starting a lawsuit (by "civil" I mean not a criminal matter and not a family law matter). In this post, I explain how and why it makes sense to mediate your family law dispute before filing a case or a motion in the family courts.

Family law disputes are more personal, intimate and emotional than any type of dispute I've ever seen. Filing a lawsuit against your spouse, or the other parent of your children, frequently raises the antagonism between the parties and fuels the fire that started the dispute in the first place. Getting the dispute into mediation sooner rather than later helps to prevent the escalation of antagonism by avoiding the problems inherent in a "bad divorce."

When parties decide that their marriage is not salvagable, they can find a mediator they both agree on and meet with the mediator to discuss the dissolution (divorce) process . They can share the costs of the mediator or they can make other cost-sharing arrangements that work for them. They will work together with the mediator to file the necessary paperwork in court to start the marriage dissolution process and they will work together with the mediator to file the paperwork needed to finalize the dissolution. Independent attorneys will be involved to approve the agreements reached at the end. This process takes about six months (that's the minimum time required by the courts from the time the divorce papers are served until the time a final judgment can be granted). In this process, the parties have worked together with a professional mediator trained to help disputing parties work together, to resolve all of their disputes in a peaceful and sensible manner.

The litigation alternative is for each party to hire their own attorneys (with minimum retainers usually required by attorneys to avoid working for free), rush to be the first to file the Petition for Dissolution (even though there is no benefit to being the Petitioner versus the Respondent), be the first to file a custody motion or a child support motion or a spousal support motion, pay the attorneys to draft the motions and oppositions and to appear at court and argue over your personal finances and private lives resulting in temporary orders, and then starting the process over again to get permanent orders on support, custody/visitation and property division. This path does not mean you can not try to resolve your disputes informally during the litigation with or without a mediator, as this is how many litigated cases get resolved in the end.

If it is a non-divorce custody or support matter (i.e., modification of visitation, custody or support), the alternative to filing a motion and re-opening or starting a new case, is to simply have both parties meet with a private mediator and work out an agreement together which can be filed with the court as an enforceable order.

The mediation process is extremely flexible and can be used in different ways by different parties depending on their circumstances and needs. A lawsuit or a motion does not need to be filed in order to work out an agreement and create a binding contract and/or an enforceable court order.