Is Divorce Mediation for You?


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divorcekidsThe answer to this question is very important when you and your spouse are crossing the line into that state of certainty where you know will end your relationship and marriage will end in a divorce (dissolution of your marriage). Then the question arises, how will we do this?

If mediation is suitable for you, it is the best way to proceed. But, that question has to be asked and answered: Is Mediation for you? Mediation is the best possible course for a divorce, if  a) you both do not hate each other’s guts, and can treat each other with civility, even as you feel hurt, b) still respect each other and your mutual rights and obligations as two people who once loved each other enough to say, “till death do us part!” If this is who you both are, you will save yourself and your family not only thousands of dollars in costs of a litigated divorce, but also you will spare yourself, your soon-to-be former spouse, and any children you might have, a great deal of emotional pain and grief. A divorce is emotionally hard enough under the best of circumstances, but when you add litigation to the process it can be awful no matter how good, well trained, and well suited you attorney might be to family law litigation.

However, as great a choice as mediation can be, it is obviously not for every case. Part of an initial consultation is assessment of the likelihood of success in mediation. There are cases where your choice is made for you by the circumstances. If one is for example abused in a relationship (physically or mentally), you are not in a position to move through this process as friends or with a friendly attitude. Note that the conditions I wrote above do not exist in such a relationship (i.e. civility and mutual respect). It is true that many of the most contested cases at some point end in a negotiated settlement. But, they usually do not start in a peaceful, mediated environment. They cannot be; many bitter issues have to be dealt with before a settlement is all but found to be inevitable after a few visits to the family court. The reason for these final settlements are fatigue from the process, spending too much money on litigation, or hopefully because the parties finally get educated enough about their rights and obligations under the applicable laws and they realize what to fight for, and what to let go and settle for. Of course, your attorneys have a great role in this process and have a duty to settle things fairly and by negotiation if they can. However, litigation does not teach all parties, or their attorneys, the skills required to negotiate by compromise successfully, and they end up fighting in court for a long while, before some resolution is achieved.

Also, it is important to know that a single attorney can mediate the case, but if he is mediating on behalf of both sides, if mediation fails, he/she cannot represent either sides in litigation due to the conflict of interest created by confidential and fiduciary obligation to both sides. One attorney can navigate and help conclude the case, when representing one party, and the other side is self-represented. But, when only one side has an attorney, the attorney cannot give legal advice to the opposing party, and has to make sure the rights of the opposing party are protected by advising them clearly of their right to retain their own counsel. In this latter case the one attorney is really representing one side, but facilitating the process and negotiating on behalf of one side. The requirement to be truthful, and transparent in disclosure, is balanced with the need to advocate strongly for one’s client.

Here are some specifics about the mediation process, where one attorney is truly mediating on behalf of both sides:

  1. Both sides can be in the room, if they can respect each other’s time to speak, express their concerns, and ask questions from the attorney. If this is not comfortable, attorney can meet with each party on their own and design a back and forth process to resolve issues and isolate any disagreements.
  2. You should be ready to disclose and provide information you never before thought was necessary. Keep in mind the information has to be disclosed no matter what–litigation or mediation, you still need to disclose true extent and nature of what you own, what you owe, and when it comes to children, deal honestly with what is in their best interest, and not just what you can do to for example pay the least amount of child support.
  3. Both sides have to fully engage and not just be passive. You can do that, but this will lead to one side filling all the blanks, and the other quietly resenting how mediation is going forward, and often voice their concerns late down the path–when it creates more problems and challenges. Speak up and participate; ask questions; find out why what you think you should get is legally fine, or may present a problem or infringe on the other party’s rights. A “good divorce” can only be had when both sides are well educated about the issues and know they have struck a good compromise. Often, both sides are a bit unhappy, but each side gets much of what they want.
  4. Unless one or both sides are right down unwilling or unable to understand why the other is also entitled to a fair shake, mediation will work.
  5. Mediation can at times at least resolve most issues, and leave the most entrenched issues for litigation. Although, even litigation is supposed to weed out and resolve simple issues and only fight over what is truly contested. It is just a whole lot more expensive to litigate no matter how you look at it.
  6. Last, but not least, mediation gives both sides a high measure of control over the process. Remember, what you cannot resolve, a judge will have to decide for you when you disagree and fight. That is by definition out of your control and hands. Although, there are issues of law that once in a while require assistance from the court to resolve and that is also just part of the process. This is however not true in majority of cases, because they involve well established, well defined laws/statutes, and cases to guide the attorneys and the parties involved

Consult an attorney if mediation is suitable for you. It is not for every case, but where it is suitable, it is the best choice.