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.
This alternative can consist of asking a neutral mediator to help the couple settle property distribution, child and spousal support, and all of the other key issues that arise when a marriage ends. A mediator can listen to the interests of each spouse, tell them how a court would rule on any disputed issue, and help them draft a divorce agreement that a court is likely to approve. People often find mediators through personal referrals, but it is also possible to find a capable mediator online or by asking your lawyer for a suggestion. However, the lawyer of either spouse may not be the mediator.
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, and everything that is discussed during mediation remains confidential (as opposed to litigation proceedings, which are public hearings). 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.
Although it may sound like arbitration, mediation is a distinctly different process. In a binding arbitration (not all arbitrations are binding), the arbitrator essentially functions as a judge, making decisions that are binding on each spouse, whereas a mediator cannot make binding decisions. If the spouses reach an impasse in their negotiations, a mediator may recommend a solution. But a mediator cannot force you to reach a settlement.
Many states have begun to require that divorcing spouses go to mediation for certain sensitive issues, especially child custody and visitation rights. The main difference between court-ordered and private mediation is that private mediation can cover many more issues related to divorce. For example, you can use it to divide your property or handle other financial matters. To make mediation as effective as possible, you should listen to your spouse and leave your mind open to compromise. Sometimes starting with relatively minor issues is a good way to open this conversation before addressing more important and contested areas.
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. It tends to work especially well when both spouses are content with the decision to part ways and have relatively little lingering animosity toward each other. Each spouse should feel able to communicate openly and honestly with the other spouse while trusting that the other spouse will do the same. When children are involved in a dissolving marriage, confidence that each spouse is a good parent can help lead to a successful outcome in mediation.
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 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.
If negotiating directly with your spouse through mediation makes you uncomfortable, you may want to consider another alternative to divorce through the courts. This is a process called collaborative divorce, when each spouse finds a separate attorney to help negotiate an agreement. An attorney must undergo specialized training to practice in the area of collaborative divorce, which means that these specialized attorneys will know how to handle any situation that arises in the process. Each spouse meets individually with his or her attorney, and then all four people (both spouses and both attorneys) will meet as a group to resolve any conflicts. Like mediation, collaborative divorce tends to unfold across a series of confidential meetings. Also like mediation, it is generally less time-consuming than formal divorce proceedings. If the attempt to reach an agreement fails, the attorneys involved will not represent either spouse at a contested hearing.
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.