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 is mediation appropriate?
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 mediation 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.
Will mediation work 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.