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What is divorce mediation?
Divorce mediation is a process where separating parties come to a divorce
or separation agreement with the help of a neutral third party - the mediator.
Typically, the mediator will meet with the parties together, facilitate
communication where necessary, help the parties articulate their goals
and creatively resolve the issues before them. Assuming the parties reach
an agreement in mediation, generally the mediator will draft the agreement
for them.
Why choose mediation?
In mediation, parties have the opportunity to negotiate their own settlement
rather than have one imposed on them by the court or their attorneys.
The parties stay in control of their own divorce or separation. As in
Collaborative Practice, each step is by agreement, in contrast to the
adversarial process in which attorneys set court dates and judges make
decisions with limited time and information. Mediation works for parties
who can take advantage of the fact that they know how they want their
lives to look. For parties whose shared goals are to separate with dignity
or to build a solid post-separation working relationship where there are
children, mediation probably provides the most direct way of resolving
their matter.
When?
The timing of the beginning of the process is usually determined on a
case-by-case basis. Sometimes it is best to start mediation before the
actual physical separation rather than waiting, because a mediator can
help separating individuals make good decisions. For example, it is usually
best to have a good idea of how each person will be spending time with
the children and how their cash flow will be shared before they set up
separate households. Sometimes it is best to continue in couples therapy
while separating and to avoid the legal process until the couple is truly
ready for it.
How do I protect my rights? (Do I need a lawyer?)
Because divorce and separation involve legal questions, divorcing parties
should be educated regarding their legal rights before agreeing to a settlement.
Mediating parties are no exception.
Most parties consult independent counsel before signing an agreement.
The way in which a party works with his/her consulting attorney varies
widely depending on that party's ned. For example, one party may confer
with his/her independent counsel before each mediation meeting to help
prepare for that meeting. Another might not consult with independent counsel
until he/she is getting ready to sign an agreement. It just depends on
what is most optimal for each party.
Doing independent legal research is another option. It's best to do this
as early in the process as possible, then follow up with a legal review
before signing the settlement agreement.
What about the law?
Most parties want to be educated as to the law. Many mediators try
to strike a balance between their prediction of what a court would do
and other standards that parties might want to consider. The law is more
subjective than most people experience it, and lawyers often disagree
about what the law is, as do judges. Ideally, the law is part of a mix
of things that are relevant in mediation, along with other criteria that
parties deem important.
Does
the mediator ever take sides?
An experienced mediator doesn't give advice to either of party independently,
and can't act as a lawyer for either party. The mediator's goal is to
help parties come up with an agreement that is acceptable to both of them;
to do that, the mediator makes a point of looking at the issues from both
sides.
The mediator will, however, point out matters the parties should be aware
of in what they are trying to accomplish. That open and free exchange
of information facilitates the parties' abilities to negotiate with each
other in confidence. Both parties are working with the same base of information,
so the process of reaching a resolution that makes sense to both is more
efficient.
If I choose mediation, am I stuck with it?
Mediation is voluntary. It continues only for so long as both parties
and the mediator want it to. Anyone can withdraw from mediation at any
time.
How long does it take?
Mediation usually takes less time than litigation. The pace is completely
up to the parties, but it is common for the parties to move at different
speeds. One spouse often needs more time than the other to adjust to the
separation and to understand the process and the issues. Mediation and
collaborative practice typically move at the pace of the slower person.
How can I tell if it is not for me?
For some couples, negotiating directly with each other, even with the
help of a mediator, is not possible. That could be because of a) issues
such as domestic violence or substance abuse, b) a significant imbalance
of personal power between the spouses - or intense emotional reactions
- that make one spouse uncomfortable in a negotiation without his or her
own personal representative, or c) because a spouse is simply unwilling
to mediate. Before turning to litigation, however, these couples should
explore Collaborative Practice, which could still help them to honor shared
goals and stay out of court.
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