The end of a marriage can be intensely stressful. Emotions often flare as a couple tries to resolve issues like alimony, child custody, and child support. Unfortunately, the traditional divorce process can deepen hostility between the spouses when they confront important questions concerning their future. In many situations, couples whose relationship is not abusive or completely broken should consider pursuing an alternative to divorce through the courts, like mediation.
Mediation, Always an Option
Even if you have hired attorneys, you can always opt to enter into mediation with your partner to settle differences you may have. However, the lawyer of either spouse may not be the mediator.
The Mediation Process
Many spouses have success with the mediation process because of its unique structure and flexibility. In mediation, the parties make all the decisions, rather than the mediator or a judge, and the parties are never forced to reach a settlement. Mediators will have their own preferences, but all mediations follow the same general format.
Before the parties even come together, mediators will usually ask for information about the dispute. This may involve a phone or in-person meeting or a written statement and relevant documents. Some mediators require both spouses to submit all financial documents before the mediation. Spouses may each plan to bring a lawyer if they choose, but it is not required. If a spouse would like to bring another party, such as a friend for support, all parties must agree before the mediation begins.
Finding a Mediator
Although not all mediators are lawyers, many experienced divorce attorneys and retired judges work as neutral mediators. You may benefit from their legal experience and expertise in structuring a valid settlement agreement. Along with the Justia Lawyer Directory, you may have success finding mediators through your state’s mediation associations, your family court, or your attorney.
The mediation will begin with an overview of the process and the rules that the mediator will follow, including neutrality and confidentiality. Often, the mediator will give each spouse a chance to make a statement. The mediation will then continue in a combination of joint and private sessions. During joint sessions, all parties will talk through the issues and attempt to come to a resolution. During private sessions, the mediator will meet alone with each side to discuss the progress and the party’s concerns. At the end of the session, the mediator will bring the parties back together for a final meeting. If the parties have agreed on all or some issues, the mediator will help them put the agreement in writing. If they have not reached an agreement, the mediator will probably invite the parties to schedule another session. If a mediation ends with a divorce settlement, the agreement and any other required forms must be filed with the court.
Confidentiality and Other Benefits of Mediation
Mediation has been successful for many divorcing spouses seeking to make a plan for the future that satisfies each of them. It may be a much less expensive and time-consuming process than going to court for hearings. In addition, mediation is generally confidential, as opposed to court, where hearings are public. Mediation offers spouses more flexibility than the traditional divorce process because they can make their own decisions on key issues, within legal limits, rather than asking a court to make them. Entrusting a court with deciding who lives with your child or how much alimony you have to pay can be a nerve-wracking experience. Mediation allows you to avoid that unpredictability and is more likely to produce a stable long-term result.
Many states have begun to require that divorcing spouses go to mediation for certain sensitive issues, especially child custody and visitation rights. In most instances, court-mandated mediation is less costly or even free. The main difference between court-ordered and private mediation is that court-ordered mediation may not cover all the issues that need to be finalized in a divorce, while the scope of private mediation is up to the parties. Even if the scope of court-mandated mediation is limited, at least one agreement on a key issue can facilitate further negotiations.
Focus on Children
In some states, if you cannot agree to the terms of child custody and support, you will be required to enter into mediation to figure it out, whether you want to or not.
Choosing Between Traditional Divorce and Mediation
Despite all of its advantages, mediation may not be the ideal solution for every couple going through a divorce. Some instances when mediation is less effective include a relationship troubled by domestic violence or substance abuse. When one spouse regularly intimidates or dominates the other, the spouse in the subservient role may not be able to fully articulate his or her interests in mediation. Also, some spouses grow so bitter toward each other as their marriage breaks down that they cannot talk directly to each other anymore. This may make mediation less effective because candor and respect are essential to the process. When one spouse has deliberately deceived or misled the other spouse, the necessary layer of trust may be missing that makes mediation work. If you are in one of these situations, you may prefer using a more conventional divorce process, or hiring a mediator experienced in these issues, to make sure that your rights are adequately protected.
Using a Lawyer in Mediation
You might be concerned that you don’t know the law well enough to protect your rights during mediation, even if you do some research on your own to prepare. However, you can use a lawyer of your choice during the mediation process. If you enlist the help of a lawyer, choose someone who is familiar not just with family law principles but also with the mediation process. This lawyer can advise you on negotiation techniques, explain relevant legal concepts, and review any resulting agreement to make sure that it is valid and protects your rights.
Can I Ask My Mediator About the Law?
You are not in the dark without a lawyer – a mediator is allowed to explain the law and legal processes. A lawyer, however, is able to counsel you on legal strategies and give advice.
If negotiating directly with your spouse through mediation makes you uncomfortable, you may want to consider collaborative divorce. In a collaborative divorce, each spouse finds a separate attorney to help negotiate an agreement. Collaborative divorce shares with mediation the benefits of privacy and efficiency, but attorneys usually lead negotiations, rather than a neutral third party.
Whether you choose mediation or collaborative divorce, you will need to have some contact with a court to finalize the dissolution of your marriage. But this should be brief and painless if it is simply an uncontested petition. Courts have grown accustomed to the use of mediation and collaborative divorce, so it is likely that any legal, valid agreement will be accepted.