My goal as a divorce professional is to help people make good, informed choices as they navigate the many important decisions they must make during this life transition. An immediate, and important, decision is what kind of process to choose for a divorce. Will the two of you decide to reach a settlement outside of court and pursue an option such as mediation or collaborative divorce, or will you ask a court to make all of these important decisions for you? There are many reasons that it’s better to do it yourselves, if you can.
- Mediation gives you an opportunity to disentangle the the roots rather than asking a court just to cut them away to create two separate plants.
- The process is designed to keep you in control of your own affairs.
- Mediation allows for more flexible arrangements where children are concerned.
What If I Choose Divorce Mediation? (For more in this article, please click here)
If you choose divorce mediation, the process of mediating your divorce in my office is private, comfortable, informal, and designed to help the two of you negotiate your own solutions that are fair and which reflect your own key family values.
A big question is, “What happens if we can’t agree?” Well, the things you can agree on are the beginning of mediation. It’s the mediator’s job to help you understand each other’s viewpoints, explore options, weigh risks and benefits, and reach agreement on the other issues. There are many ways that mediators help parties reach agreement. Among other things, consultation with attorneys, financial experts, psychological experts, and vocational experts is encouraged, when needed, to make sure you and your family get appropriate professional guidance through what may be one of the most challenging times in your life.
Mediation is always voluntary, and it doesn’t take a lot of time or effort to investigate mediation. If it works, parties will have saved tremendous stress, resources, and heartache. A single two hour session with a mediator can help you walk through the issues and make sure everything is, indeed, resolved before you undertake the process of an uncontested divorce. It’s possible that you may be able to resolve all issues right then and there, and then truly know that you do indeed have an uncontested divorce. And then, still other people definitely need to go to court. If you are one of these people, an initial consultation with a mediator can clarify this decision so you will not be left with lingering doubts. If mediation is not an option or if it doesn’t work, court still remains as an option.
Two reasons to consult with a mediator, therefore, are to see if your divorce truly is uncontested or to see if you truly need to go to court. Realistically, a majority of cases fall somewhere in the middle. Parties are not quite agreed on everything, but they want to avoid the heartache, stress, and expense of full scale litigation. In these situations, mediation may be an excellent option. The mediator knows what issues need to be decided and will help you with tools to make those decisions, peaceably and respectfully. Mediation occurs in a series of meetings held in the confidential and informal setting of the mediator’s office. There is no pressure or coercion to make any particular decision, and parties are encouraged to confer with attorneys at every significant decision point. The overall cost is, generally speaking, a fraction the cost of litigated divorce.
No matter what path you think may be right, it can’t hurt to have a professional consultation to explore and confirm your choices. If you’d like a consultation to discuss pro’s and con’s of various options, or to learn more about mediated divorce, please fill out the contact form on right side of this web page, or call 803-414-0185.
Why Is It Important to Decide What Path to Choose, at the Beginning?
The reason mediation is a deliberate choice one must make at the outset is that if a person just goes to an attorney, it is likely the attorney will immediately implement the tools that most attorneys are trained to use: file court papers asking the judge to make all the decisions for the parties concerning their living arrangements, support, child custody, and temporary property division. Attorneys use mediation too, but not in the same way. In the context of a litigated divorce, mediation is nothing more than an expeditious way to “settle” the lawsuit. The difference between mediation to settle a lawsuit after parties are already in an adversarial stance (litigated divorce) and mediation as a way of solving problems as a team, prior to serving court papers (mediated divorce) is something like the difference between a zebra and a horse. Both are four legged animals that run, but they are very different in other ways. Do not confuse a mediated divorce with mediation used as one component of a litigated divorce!
What Is the Difference Between Mediated Divorce and Litigated Divorce?
Unlike mediation, the litigation model immediately pits parties against one another as adversaries. This has immediate consequences that affect every other aspect of how your divorce is managed:
- The way the papers are worded, and the way the papers are served, can cause hurt feelings right away
- If one party files a paper, the other feels forced to respond defensively
- The request for relief from the court puts all decisions in the hands of the judge rather than keeping decisions within the control of the parties
- Having a stranger in control of all decisions creates incentive for parties to jockey for position and focus on evidence to convince the stranger of their position, rather than to focus on truth or genuine best interests of the parties
- Assuming parties were capable of voluntary exchange of information, the excess paperwork involved in court litigation spends money needlessly
- Assuming parties were capable of negotiating on their own, the initiation of court processes results in each being required to hire an expert in court processes, namely attorneys
- Spending the family budget on attorneys may reduce the budget available to spend on other experts that may be needed, such as counselors to help with adjustment or parenting issues or financial experts to help with asset division issues
Divorce mediation attempts to avoid these problems:
- Mediation is non-adversarial. Even if parties have been locked into argument, the mediator will help parties communicate and work together for their common goal of separating amicably and continuing to work as a team to parent children
- Court papers are not filed until after an agreement has been reached
- Parties work out their own solutions rather than asking a stranger to decide for them
- The confidentiality of the mediation environment and the fact that mediation discussions may not be used later in court encourages candid discussion of pro’s and con’s of various options
- No resources are spent on litigation unless parties actually reach impasse
- Parties are encouraged to use attorneys as consultants, but the mediator rather than the attorney manages the negotiation process
- Once a satisfactory settlement has been reached, the attorney may be engaged to process an uncontested divorce, but complex legal expertise for purposes of managing court litigation is not needed
- Resources that otherwise would be spent on litigation may be reserved within the family for other things that are important to the family
What Are Some Reasons Not to Mediate My Divorce?
Even though mediation offers many benefits, there may still be many unknowns. Some common fears may be, “What if I try to negotiate, but my spouse won’t agree? What if, while I’m negotiating in good faith, my spouse is using the delay to hide money somewhere? If negotiations fail, won’t I have to litigate anyway?” These and many other important questions deserve serious thought and answers. For mediation to work, both parties must, indeed, be committed to principles of fairness. To enable each other to gauge fairness in some objective way, both parties must also be willing to engage in full financial disclosure. Part of the decision to mediate depends on the leap of faith each party must take, to take a chance that the person they once loved enough to marry will join in seeking a mutually fair solution. If both parties are willing to be fair, and if both are willing to engage in full financial disclosure, then there is a good chance their case can be mediated.
Consider stepping off the beaten path to try mediation!
What Are Some Key Benefits of Mediated Divorce?
As a divorce mediator, I help parties who want to find a way to take the high road. Even when people are divorcing, it is possible to do so respectfully and with dignity, and to achieve a result that is fair. Used properly, mediation doesn’t just reduce conflict. It often helps parties achieve a better result than could be obtained through litigation. Why is this so? Most likely it is because lower levels of conflict result in more cooperation and thus a wider range of options. Cooperation enables parties to work creative settlements that a court could not order; it enables parents to continue to work together as parents; and by reducing legal costs it also helps parents keep more resources within the family unit.
My hope then, as a divorce mediator, is that mediation will produce the best overall outcome for the family as a whole, including the children. By helping people in this way, I am privileged not only to help parties make their best decisions for negotiation in the present, but also to choose a path that will result in a better future for many years to come, for themselves, their children, and their grandchildren.
If you would like more information or are interested in scheduling a consultation for divorce mediation, please call 803-414-0185, or use the contact form on this web page.