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Court vs. Mediation

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  • Court vs. Mediation

    I am going through a particularly difficult time with my ex. We separated in May and agreed to share custody of our 2 girls. We have no formal agreement. He had one drawn up which I had reviewed by a lawyer and agreed to sign, however, when he took it to a lawyer the lawyer told him it was crap and not to sign it so we are without an agreement.

    We have several issues on which we cannot agree. He threatens repeatedly to take me to court. Last week I provided him with information on mediation and told him I thought it would be a good path for us. He is refusing to go unless I pay for both of us. I'm currently in bankruptcy due to the debt load I was left with from the separation and will have to borrow from relatives just to pay for myself, there is no way I can pay for him as well.

    What I'm wondering is how to proceed? Should I file with the court before he does? Should I wait for him to file? Is there a way I can request that he be forced to attend mediation? To be honest I'm not so sure it would work with him anyway as he tends not to listen to logic or reason.

    I really need to get these issues resolved soon. One issue in particular affects my job.

    Any advice is appreciated.

  • #2
    If you file with the court, you have the option on the date of your court date to attend a mediation session with the court-appointed mediator. If he doesn't want to go through mediation outside of court, perhaps he'll attend the day of your court date. After all, it's a free service.

    Mediation is good in theory... if the parties can agree on what is reasonable. If even one party believes they deserve more and won't budge... it's hard to come to a compromise.

    If your ex is threatening to take you to court... it's not the end of the world. At your first court appearance, they will ask what measures you took before coming to court, and you can indicate that you had tried to go to mediation, but he refused. In some cases, the court clerk or judge will actually send the both of you to mediation at the courthouse before proceeding with your case.


    • #3
      Thanks. I was really hoping to avoid court. I know my ex loves his kids and wants to do the right thing for them but he is just so blinded by his anger towards me that he makes stupid decisions.


      • #4
        I am in the exact same situation you are in but she has interim custody. Who has custody of the children? Hopefuly his anger and stupid decisions don't affect the kids and isn't preventing you from seeing the children 50/50. Specaily if your are both good loving parents. We can do one of two things in a situation like this, my opinion of course. Let our emotions dictate how we handle a crises(seems like thats the path he's taking) or do the correct thing and put the kids mental and physical health first and formost and settle our diffrences between two mature adults. Mediation would have been helpful, but only if you are both willing participant. One way is long, painful,takes a toll on ones health and costly. The other is quick (usualy), cost effective and everyone comes out satisfied with minimal psychological scars. Again, my opinion.
        If only my ex could read this.


        • #5
          He's willing to go to mediation but only if I pay. His reasoning is that he doesn't think it will work. Translation = he won't get what he wants

          We are currently sharing custody 50/50 but he's made some really poor decisions since the separation and so I need to make a move to prevent any future ones. I think I'll make one last ditch effort for mediation before filing. I have a feeling things won't go very well for him if we go straight to court. How do you save people from themselves? LOL. Not my job anymore I guess.


          • #6
            Mediators require that each party pay half the costs, because they work for both of you/neither of you.

            Of course, you can get around that by slipping the money to your ex and then he pays, but the principal is that both share the cost and it is for a reason.

            If he doesn't pay, he has no interest in the process working, that is already obvious to you.

            If he is refusing to pay for it, try to get a record of that, like an email, which will help your case that he was not willing to negotiate reasonably.

            There is such a thing as "mediation-arbitration" which you can ask for at court. This is where you go to a mediator, you try to negotiate a settlement, if it fails the process automatically switches to arbitration and the arbitrator makes the final decision. You will both have to abide by it. (Different than stepping into regular arbitration where the two of you have no option to reach a settlement on your own, the arbitrator makes the decision and you must abide, period.)

            You can go to mediation on your own, or you can have your lawyers there to do the arguing. Lawyer mediation is more expensive, but your ex's lawyer will have to at least appear to be reasonable.

            Arbitration is essentially hiring someone to be the judge and having a mini-court, you are bound by the result. You could appeal it if you could show that some of the evidence given was fraudulent, but otherwise you would be bound. It is faster and cheaper but you won't necessarily get what you want or would be happy with.


            • #7
              Thank you! That's fantastic information.

              Two questions - can text messages be used as proof? My sister (who has been through court) says no.

              And, how does evidence work in arbitration - meaning - do you need some kind of proof or is it just he-said-she-said and the arbitrator tries to weed out the truth?


              • #8
                Talk to your court. Some courts have family mediation programs at no charge.


                • #9
                  Unfortunately no. It's based on income so it's not as expensive as a lawyer but it will still hurt.


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