When the natural parents of a minor are deceased or become otherwise incapable of caring for their child, the issue of legal guardianship comes into play. Guardianship pertains to a type of legal arrangement which places the minor or ward in the care and custody of an individual of good moral standing and who has the best interest of the child in mind.
In some cases, even individuals who are not minors can be placed under legal guardianship, especially if they’re incapacitated, mentally ill, or otherwise unable to make legal decisions on their own.
While there is the option to take a guardianship dispute to court, most legal experts will advise you to undergo mediation instead. These processes are much less adversarial and may bring disputes to a close without the need for time consuming and expensive court battles.
Top Reasons Why You Want to Mediate Guardianship Disputes
Choosing to undergo mediation can be much easier on the pockets of both parties. For the most part, only mediation fees need to be paid, and the legal professional or attorney hired for the case is a neutral party who simply takes on the role of a mediator to bring all evidence and arguments to light.
For instance, if a party decides that they are unhappy with the outcomes of the first trial, they can appeal for a higher court to re-evaluate their case in the form of an appeal. The courts of appeal, as expected, are very busy especially because majority of those who lose a legal battle will often try to exercise any avenue in order to have the decision overturned in their favor.
Depending on your locality, there can be up to four levels of courts that you can approach to file an appeal. So in the instance that the decision is overturned during the first appeal in your favor, the opposing party has the option to seek another appeal through the higher court. This can be exercised until you reach the highest court allowed for your case.
For this reason, guardianship battles can take a lengthy period of time, especially when both parties continue to seek appeals when a decision is made to benefit the opposing party. Also, because there are several hundreds of cases lined up to be re-appealed, you may have to wait several months or years before the next proceedings. In addition, you should have an experienced mediation professional to make the process as faster as possible.
Mediation on the other hand, can take as little as two weeks to reach a decision. This is because they’re far less adversarial, allowing the parties to discuss their points of view in a more conducive environment. What’s more, any information divulged in a mediation can’t be used as evidence in court, so participants feel less threatened when volunteering their thoughts, opinions, and arguments.
It is assumed that when two individuals compete for the guardianship of a ward, they are relatives, friends, or acquaintances. As such, taking the legal dispute to court can seriously damage these relationships, and may even have a toll on the emotional and mental well-being of the ward.
By taking your guardianship dispute through mediation, you set the tone for your relationship with all parties going forward. Because the process can be far less antagonistic, the true objective of the dispute is brought to light – and that is the best interest of the ward or the child. This makes it easier for participants to come to a compromise, even if it sacrifices their own intentions, as the child becomes the central focus of the process.
Although taking a guardianship dispute to court might be the first route on your mind, alternatives like mediation can be much less costly, time consuming, and damaging. Understanding how all parties can benefit from these arrangements can drastically affect the outcomes of your dispute, and may even result to positive conclusions that benefit everyone involved.
James Alfini shares his concern of lawyers being trained to do case evaluations instead of mediation, but still using the term 'mediation' when they're doing case evaluations.By James J. Alfini