Family Court Is Now Becoming
More Mediation Minded

By: Bradley Coates
Special to the Oahu Island News

The family court of yesteryear generally accepted that parties who came before a judge asking for a divorce trial were usually too far divided to be brought closer together through any form of settlement discussions or techniques. Stated more simply, the family court of old reasoned that if the parties hadn’t yet agreed on the issues, then they would most likely never agree on the issues.

With this type of reasoning as a backdrop, the family court became more crowded and congested as ever more parties kept requesting trial dates. The system soon became quite backlogged. Something simply had to give. Over time, it did, as Hawaii’s family courts gradually realized that mediation of the disputed issues was “the way to go”. This progressive thinking has led to today’s family court, which now requires that all parties who appear before it in divorce actions be ready, willing and fully prepared to engage in mediation as a primary tool to help resolve many, if not most, of the issues in dispute. Contested trials are generally not set unless and until mediation has been tried.

Divorce mediation is a cooperative problem-solving process where a neutral professional assists family members in clearly defining the issues which are in dispute and in reaching agreements that are in everyone’s best interest.

Mediation is not a form of marriage counseling, nor is it arbitration. Rather, the mediation process centers on the parties themselves dealing with specific, unresolved issues and, with the aid of the mediator, arriving at mutually acceptable agreements that can
be formalized as an uncontested divorce decree.

The mediation process provides an alternative to adversarial litigation, which unfortunately often casts divorcing spouses as opponents. In contrast, the spouses in mediation are viewed as cooperative adults who are proactively restructuring their lives and the lives of their children. The parties who adopt and embrace the mediation process choose to take charge of their lives and maintain their senses of dignity and self-esteem. They are in effect saying that they prefer to end their marriage by a cooperative and rational procedure that minimizes the hostility, expense and uncertainty of divorce. When the parties approach the mediation process with gusto and enthusiasm, mediation often results in equitable, workable and long-lasting divorce agreements.

The family court recognizes the positive aspects of the mediation process and endorses its high percentage of positive results. As mentioned, today’s revised family court policy will generally not allow divorcing parties to move to trial unless and until mediation in some form has been entered and tried in good faith.

Obviously, mediation does not work for everyone, but the family court recognizes that in most cases, the mediation process is very successful, often resolving all disputed issues or,
at the very least, narrowing the issues in dispute.

The many benefits of mediation include the following: a) the parties control their own decision-making process; b) the parties learn improved communication skills, including the ability to amicably negotiate disagreements in a productive manner; c) the harmful effects of divorce on children are substantially minimized; d) the parties save both time and money; e) anxiety, pressure, stress, uncertainty and anger that traditional divorce litigation places on all involved parties is substantially decreased, and f) a “win-win” rather than “win-lose” approach to conflict is emphasized.

Because family court now requires that most parties who appear before it engage in some form of mediation, several “mediation-minded” programs and services are now being offered to divorcing couples. Our law office handles an ever increasing number of mediation cases under our “Divorce With Decency: A Mediation Clinic” trade name…as do many other companies and law firms.

While it is true that mediation doesn’t work for everyone, it has an astounding success ratio of about 80% of all cases brought in. Mediation’s best successes come about when the parties are willing to sit down together and try to “make the best of” an obviously difficult situation by talking honestly about their individual needs and those of their children. If this is done, mediation usually works very well for the divorcing couple, allowing them to stay out of family court and its always stressful and often very expensive litigation process.

Bradley A. Coates, J.D., has been a practicing divorce attorney in Honolulu for over 25 years. He has been selected as Honolulu’s best divorce lawyer and is the founder of Coates & Frey, Hawaii’s largest family law firm. Coates wrote an award-winning book titled “Divorce with Decency: The Complete How-To Handbook and Survivor’s Guide to the Legal, Emotional, Economic and Social Issues.” This article contains general information; readers should not take any actions based on this summarized information. Instead, appropriate experts should be consulted for each individual’s case and/or fact situation. Phone: 524-4854. Web site: www.coatesandfrey.com.