Due to the emotional components of divorce, the Kentucky family courts have set up a process known as alternative dispute resolution, which is also known as mediation. The court is judicially bound to not involve themselves in mediation, so they appoint mediators to help them in their court procedures.
One benefit of mediation is that it is confidential in nature, which means that the mediator cannot be subpoenaed to court to testify about conversations that the parties have during the course of mediation. The purpose of this alternative dispute resolution mechanism is to allow parties to communicate in a more civil manner with one another through the use of their attorneys or by themselves.
The problem with our legal system is that it is adversarial in nature; it encourages opposition between people rather than cooperative efforts which could lead to resolutions. Mediation is an attempt to move that adversarial process to an environment within which a true conversation can be had. Perhaps the most difficult part of representation in legal divorce cases is that every case involves people who used to love each other; they got married, had children together, and shared a life together until something in the confines of their home led to the breakdown of it all. It’s perhaps a worldwide understanding that when people get emotionally hurt, they tend to strike at the people who hurt them and they tend to have a lesser ability to understand the underlying dynamics and mechanisms that caused the breakdown in the first place.
There are two sides to every story, and lawyers are trained to advocate for one side over the other, but I always say that in our business of divorce, only the names change. Ultimately, we’re all human and it’s all part of human interaction. Mediation allows people to come to the table and talk about how they are going to set up a schedule that allows the children to see both parents, who will take the children to the doctor’s office and pick them up from school, how long they are going to live under the same roof for financial purposes, and how they are going to deal with their credit card debt. Mediation allows us to tease out all of these issues and see if there is a possibility of reconciliation for the purpose of reaching an agreement. I would say that only about five percent of all divorce cases go to litigation rather than settle. When a case settles, it means that the parties have reached agreements on support, custody, property, and debt issues.
There is also a process within the mediation alternative dispute resolution mechanism called collaborative law, which means that both people agree that they will not go to court and fight one another under the regular rules of law. In other words, they agree that they will work it out no matter how long it takes. The problem with collaborative law is that if someone hires a lawyer to work it out and finally decides that they want to go to court after all, then they will have to get a new lawyer. As a result, the collaborative law process can become a costly process.
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