Does It Matter Who Files First?
A common question is whether it matters which party is the “petitioner”.
Everyone has heard about the high conflict divorce cases with attorneys racing to the courthouse to be first in line at the court clerk’s office. The belief is that it’s vital to be “the first to file.” In highly contested cases with allegations involving abuse or child safety, it might be important to file first. It is common to request temporary orders with high conflict families so that only one spouse is in the marital residence, there is a short-term plan for child access, and both parties can pay their own bills. The temporary orders in a volatile family law case might allege that the other spouse is dangerous and should be removed by law enforcement from the house; that the other parent is dangerous around the children and should only be permitted to see the children if supervised; or that the other spouse is dangerous and earns high income so should pay significant amounts of temporary child and/ or spousal support.
In mediation, neither party is trying to convince a judge that the other is bad. Instead, mediation is about problem solving and conflict resolution.
Sometimes, one or both of the parties has a symbolic reason to be labeled “The Petitioner” or “The Respondent”. Most of the time, however, we engage in the very *official* legal process: “Pick a number 1-10. Whoever guesses closest to the number, is Petitioner.”
Whatever the method used to assign each party with the title of Petitioner or Respondent, the petitions I create in mediation specifically state that the parties are engaged in voluntary mediation. This informs the judge that the parties are operating in good faith, focused on moving forward. Choosing mediation means making the intentional decision to stop living in the past. Parties in mediation invest their energy into shaping the next phase of their lives. To participate in mediation means working to protect the family’s mental health resources and emotional energy stores.