Here are some critical considerations of the valuable use of mediation for temporary orders in dissolution of marriage cases:
Impact of Time in “Temporary”
The most important thing you need to know about temporary orders in a marital dissolution case is that the "temporary" orders remain in place for what seems to parties like an interminable amount of time. Of almost equal importance is the fact that the temporary orders end when the case is either settled or tried, a factor that is often overlooked. Properly drafted, the initial orders that are entered control nearly every financial move of the parties and impose reciprocal restraints on both parties pending settlement or trial. Trials often are scheduled many months into the future thus having a major impact of the parties during the Temporary order period.
Although lawyers tend to minimize the importance of temporary orders, emphasizing properly to clients that they are just that, temporary, and in theory of no impact at trial or in settlement, clients often fail to appreciate that advice. Like it or not, the client's lifestyle is directly impacted and, in the case of a business person, the consequences for an operating business may be significant. There is also the real possibility that a court may, in a preliminary hearing, order a party to make payments that are beyond the ability of the party to pay, leading to contempt proceedings and costly legal fees.
Trial dates in dissolution cases are normally scheduled to occur many months after the case is filed. This is a long time in the world of marital dissolutions. A lot can happen during that time - hence the need for temporary orders to address the interim between filing and trial. Mediation becomes a solution to avoiding the length of constraints imposed by temporary orders that cannot be resolved until trial.
The intent and design of temporary orders seeks to preserve the financial status quo during the period of time between the filing of the case and the trial date. The basic idea is to keep all options open to the extent possible for the trial judge. That sounds very simple as an objective but it can be very complicated and contentious often ending up for resolution before a court commissioner or a revision judge. The amount of time allowed for argument of these motions is usually very limited and the parties often walk out of the court room looking bewildered and wondering what just happened in the rulings that were just issued.
My experience in mediating temporary orders is that the process can usually be accomplished with success through mediation in half a day at a cost that is either equal to or not much greater than going to court and offers the benefit of both parties coming to a much better understanding of family finances as a result. Unlike court, the parties are allowed to correct the other party's misunderstandings or factual inaccuracies on the spot. Financial information can be exchanged in a confidential setting. There is no public airing of dirty laundry. The personal attacks and fighting over personal expenditures that often occur during a court hearing are reserved or go unsaid. Over a time span of a few hours, a temporary financial and parenting agreement can be achieved through the mediation process and the use of shuttle diplomacy. As an added benefit, the parties and counsel are often in a better place with respect to ultimate resolution of the case as a result of the mediation discovery and the conversations that ensue during mediation.
The benefit of mediation for the parenting plan, if one is required because of minor children, is that the parties and their counsel are focused in mediation on the subject of what is really going to work best for the children on a temporary basis. Often, I find that the parties and counsel have never really looked at what works for the other party nor have they really reviewed the opposing party's proposed plan. Further, the parties involved may have not really had a parenting discussion. The process requires review and discussion. As the emotion goes out of the air and the focus is on the plans, agreement is often quickly reached. Attorneys and their clients are frequently surprised by this phenomenon.
Mediation of temporary orders where the parties are in sharp disagreement will be preferable to a decision by a court commissioner. An agreement that the parties own is much better than one imposed by a third party in a court room based on affidavits and declarations with minimal time allowed for argument. Finally, even if the mediation fails to produce agreement the process and the information exchanged will result in a much more focused submittal and argument in court. All involved will benefit.