Mediation with a small “m” or Mediation with a capital “M,” and what’s the difference?
It’s a matter of style and paradigm. Read More
It’s a matter of style and paradigm. Read More
In this article, I would like to explain how “divorce mediation” is different from a “mediated divorce.” The difference in paradigm between the two is so significant that, in my view, they are as different as a horse and a zebra. Both involve use of a neutral mediator. Both can be used to arrive at settlement terms of your divorce agreement. There, the similarity ends. “But,” you ask, “What are the exact differences?”
To understand how mediated divorce is different from divorce mediation, one must first understand the basic process involved in divorce.
Divorce has many legal aspects, but there are also many aspects of divorce that are more practical than legal. The emotional and practical aspects of divorce involve changes that occur gradually over time. The process of divorce involves separating and re-establishing boundaries, reshuffling of parenting plans and schedules, rearrangements of finances. If one were to draw a list of steps, it might include: Increase in emotional and physical separation or distance -> A decision to separate -> Following through on this decision by: (a) physically moving apart, (b) separating emotionally, (c) separating finances, figuring out how to live apart, (d) reaching a property settlement, (e) reaching some sort of solution with regard to how to parent children -> and then … creating a new legal status that is “divorced” rather than “married.” As you can see, Items (a), (b), (c), (d), and (e) listed here are not really “legal” issues per se. They are practical issues with regard to deciding “what will the new arrangements be?” The difference between “mediated divorce” and “divorce mediation” has to do with how these middle items are decided. Will you decide, or will lawyers direct a process that disempowers you and places the lawyers and judge in charge of those arrangements and decisions?
This is why it is so important for people to understand the difference in paradigm. In a true, mediated divorce, the Mediator will direct the process, but it is designed to keep the parties in control of their own decisions, applying their own values, to reach their settlement agreement. Once this agreement is reached, then the last step is the legal part, to ask a judge to review and approve the divorce settlement for fairness and to grant the divorce on the appropriate legal grounds. Now that the difference in paradigm has been exposed, what is the difference in process?
If a person goes to see an attorney and tells that attorney they want a divorce, the attorney likely will assume that the parties want a judge to decide all of these issues for them. The attorney most likely will, as a first step, file legal papers asking the court to decide these issues. The legal paper creates a lawsuit which is set up as Party A versus Party B. This is what is called a “litigated divorce.” It sets the parties up as adversaries in a battle that is played out, ultimately, in a courtroom and which asks the judge to make the decision as to how all the issues will be decided. A mediated divorce avoids pitting the divorcing couple against one another as adversaries. Rather, the emphasis is on finding a fair and workable agreement.
In a mediated divorce, people to reach agreement on every single one of these issues voluntarily, without asking the judge to decide their personal affairs for them. After that agreement is reached, a contract is drawn up which lays out the terms that have been agreed upon. When the parties use a mediator to arrive at the terms of their separation, this is called a “mediated divorce” (in contrast to a litigated divorce). When the parties ask the judge to decide (using “litigation”), then it is called a “litigated divorce.”
Mediated Divorce: In a mediated divorce, the parties reach agreement regarding terms of their divorce settlement, using a mediator as a guide to the decisions that need to be made and also as a sort of referee for the conversations. Only after those terms are agreed upon do they go to court. Why is a mediator needed? Because most people don’t understand all the issues that need to be decided, and also most people need some help from a neutral person to act like a referee and help facilitate communication. (After all, if the parties got along perfectly they would probably not need the divorce.) The paradigm of mediation is neutral and non-adversarial. It seeks to help parties create fair, sustainable agreements. When mediation is used as a conflict resolution tool in its own right, the parties to mediation are not forced to be adversaries. They are engaged in dialogue, usually in a common search for resolution of their conflict. Although the laws of each state or jurisdiction are different, for the most part in a mediated divorce these issues are decided first by the parties themselves. Then, after the issues are decided, the parties go to court and ask the court to approve their agreement and issue the divorce decree.
Litigated Divorce: As soon as legal papers have been filed, the parties have already been placed into the adversarial mode of “A versus B.” In approximately 95% of litigated cases, the parties reach agreement prior to going to trial. Because the case is being prepared for trial, the lawyers (who are experts in the trial process) must manage the gathering and presentation of reliable, probative evidence to present to the judge. The lawyers must also anticipate what evidence should be excluded from the trial. After the lawyers prepare their case for trial, they use a creature called “divorce mediation” to negotiate a settlement. In those cases, however, the emphasis is on “settlement of a case,” rather than a process of exploration of options and working together to find a sustainable resolution. The lawyers manage the mediation, with the mediator going back and forth with settlement offers. Much depends upon the negotiation style of the attorneys, as well as the fact that with many more professionals in the room the cost per hour is much higher. Divorce mediations in the context of litigated divorce, therefore, tend to be high intensity, high stakes negotiation sessions rather than brainstorming and problem solving sessions. With their professional emphasis on preparation for trial and being focused on the impending hearing before a judge, attorneys naturally also place emphasis on “what would a judge do,” rather than allowing their clients to engage in a co-operative quest for mutually satisfactory solutions. After all, the attorneys are focused on “winning,” and they are eager not to let their client lose any potential trial advantage. Additionally, because judges only have a limited range of options available to them, the focus tends to be on those options rather than on the many other, creative types of arrangements parties might choose if they were to think “outside the box.” For obvious reasons, the attorneys prefer to inject significant management into what their clients say and do in mediation, in an effort to avoid prejudice in the event of an additional trial. These differences in process and in focus change the entire flavor of the mediation, making it more like a zebra and less like a horse. You may be able to ride a zebra, but it is not the same as a horse.
There will be some who take issue with this characterization. Certainly, just as there are variations between types of horses and types of zebras, it is not completely fair to say that this brief description is true for every case. Yet, for the most part, in a truly “mediated divorce,” the parties are not pitted “against” one another during their divorce negotiations. It is fair to say that in most cases that are already in court the parties clearly are already adversarial. The difference affects almost every aspect of the case.
In an earlier blog post, I described the mediator in a mediated divorce case as being like New York City taxi cab driver, helping to guide the parties through a confusing landscape to get them from point A (married) to point B (divorce) with as little collateral damage as possible. In a case guided by a mediator before the parties have filed divorce papers, the mediator will seek to empower the parties to cooperate, will encourage them to share information, and will help them act as a team to find solutions that feel fair and w hich will work for everyone in the family. Thus, even though the parties are divorcing, use of a mediator can act as a bridge to help the parties formulate the best possible solutions available for their family in the changed circumstances. This does not mean that the question “what would a court order” is irrelevant. What a court would order is a good measure of what is objectively “fair.” However, there are other ways of measuring fairness, too. In many cases what a court would do is a very appropriate measure of fairness. However, sometimes the parties themselves also decide that there are reasons to justify doing things differently.
There also are cases where mediation is not appropriate. Mediation is not a way for one party to get their way at the expense of the other. Both parties must demonstrate a commitment to principles of fairness. If one party doesn’t care about fairness, then the other party will need the protection of the Court to enforce those principles.
The different role of lawyers in mediated divorce also does not mean lawyers are not needed or are not involved. In a mediated divorce, parties are encouraged to consult with their attorney for advice and feedback. After all, lawyers are experts in what the law is, and what the law says is relevant. The difference is that, in a mediated divorce process, lawyers are consultants rather than stage managers or directors who manage and control a case. Additionally, after the parties have arrived at a settlement they both feel is fair, there will still be a need for that settlement to be reviewed for fairness and completeness by attorneys. The settlement will need to be drafted into the form of a written contract. And then, after this contract is executed, attorneys will be needed to manage the legal process that is necessary to get the settlement reviewed and approved by the court and to have the divorce finalized.
Some readers might ask, “why use a mediator when I’ll need to use an attorney anyway?” The answer, hopefully, is apparent at this time. The role of the mediator is different from the role of attorney. The attorney focuses on the legal process. The mediator’s role is not legal, but rather to help the parties to reach a full and fair agreement, hopefully prior to the start of the legal process. The cost-effective side of divorce mediation is that the mediator is focused on reducing conflict. The adversarial process, in contrast, sometimes can increase it.
If you’re interested in scheduling an initial consultation to learn more, fill out the form below. The charge for an initial consultation is $200.
Parties in non-traditional, but committed, relationships have special needs with regard to legal planning and resolution of conflict when needed. Non-traditional families do not presently enjoy equal protection of the law in South Carolina with regard to marriage, divorce, adoption, intestacy, or guardianship, just to name a few areas where protection of committed relationships can be important. I cannot “fix” the law, but I am happy to help LGBT and transgender people plan preventively and implement measures designed to provide some protection for your loved ones. Advance planning is important for everyone, but it is especially critical for nontraditional families!
There are many areas where documents can be drafted which provide some of the legal protections which do not exist as a matter of statute. These include
Not only is there a lack of legal protection for your spouse with regard to financial and property matters, but also because sometimes outside or estranged family waits until your most vulnerable moments — a time of death or disability — to try and come in and upset the apple cart. There are nightmare stories of spouses being ejected from hospital bedsides on account of their not being “next of kin.” A long term spouse ejected from a family home because the law of intestacy provided for the home to go to someone other than the spouse. Death and disability are traumatic enough to endure, without the added nightmare for your loved one of dealing with hostile or unjust legal battles.
In addition to planning that protects your spouse, gay and lesbian couples also at times deal with the same issues as other families. When gay and lesbian couples break up, they have no recourse to the courts for protection of property rights, child custody matters, or spousal support. This is when divorce and child custody mediation can be especially valuable, because it works no matter what your family composition. The transformative mediation approach I use in my practice is based on your commitment to principles of fairness rather than reliance on legalistic arguments about what the law requires. While the loss of a relationship is a painful life event, my goal is to make this difficult event less traumatic for everyone. I help you work together to meet several key goals:
I also offer legal services to facilitate the legal and paperwork aspects of gender transition.
For more information or to schedule an appointment, call 803-414-0185 or fill out the form below:
There are many reasons to mediate to resolve a family conflict or to attempt mediation prior to filing papers in a court action. First and foremost, mediation does not pit parties against one another as adversaries. Whether parties are seeking a divorce, a change in child custody, or a viable solution to meeting daily needs of an elderly family member, mediation offers an opportunity for the people affected to work as a team, on the same side of the negotiating table, to address the challenges their family will face as they transition to a new way of being or living.
When parties file papers in a lawsuit, they effectively are removing themselves from the position of authority and asking a judge to decide their case for them. Mediation, in contrast, keeps the parties in control. It empowers parties to clarify their own values and priorities, reach agreement about these values and priorities whenever possible, and implement solutions that are based on those values. A good mediator will also help the parties expose and face the monsters in the closet, in an effort to ensure that solutions agreed upon are workable and sustainable.
Mediation also opens the door for a world of creative possibilities in addition to the standard solutions that could be ordered by a court. When you hear of divorced parents who are able to seamlessly parent their children, or of a family that has all come together to manage care for an elderly family member, or a church that has done a great job balancing the competing needs and interest of various interest groups within the congregation, it is likely that the positive relationship has been made possible by good conflict resolution mechanisms (as opposed to not having a conflict mechanism and then fighting in some positional, adversarial mode of conflict such as court).
A good mediator is a skilled professional, using conflict resolution skills and coaching the parties as they meet, to help neutralize the negative and awkward aspects of communicating during conflict and to build upon and emphasize the positive. In a real sense, the mediator acts like a bridge, helping the parties get through the swamp of conflict to reach authentic, sustainable agreement that everyone can live with.
Almost every conflict professional, even seasoned trial lawyers, will admit that voluntary agreements are usually better overall for every one, provided that all parties to the mediation are committed to principles of fairness.
To make an appointment to discuss your individual needs and circumstances, please fill out the contact form, below, or call for an appointment 803-414-0185.
I. The Decision to Divorce
If you’ve definitely decided to get divorced, proceed to step 2 below. If you aren’t sure, however, then you really should consider professional marriage counseling. Marriages can be returned to health, if both parties are willing to do the hard work to address root causes. As a professional who has been involved in divorce processes for many years, I have observed that credentials of a marriage counselor are very important, and also so is finding a counselor who feels “right” for both of you. Seek someone who is, at a minimum, professionally licensed as a marriage and family therapist (will have the letters LMFT after their name) or has a Ph.D. in counseling or psychology. This is a bare minimum. Unlicensed or unskilled counselors can do more harm than good. A good pastor is one who knows and adheres to their own professional limitations and boundaries.
Going to counseling is not a sign that either of you has an individual “problem.” Nor is it a sign that either of you has “mental illness.” Rather, licensed professional marriage and family therapists and psychologists have many skills and techniques that really can help. Additionally, even if counseling is not able to “save” your marriage, professional counseling can assist with both the decision to divorce and the adjustments that will occur as a result of this major life event. Most people find the assistance of a mental health professional extremely helpful during this painful episode in their lives.
If your spouse has asked you to attend counseling with them, do you love them enough or are you committed enough to make this effort to save your marriage? Maybe you don’t see a problem, but that’s not the point. Listen to your spouse’s cry for help. They are extending an opportunity to you to try and fix things. Even if you don’t feel so loving toward your spouse right now, there is a chance that working on your marriage might fix some issues. The feelings might return. Also, if you tried counseling and it didn’t “work,” consider that you might need to try a different counselor. Over the years, I’ve seen many cases where things didn’t “click” with one counselor, but they did with another. There are many styles of counseling. Some schools of thought put more emphasis on “doing” while others put more emphasis on “gaining insight,” and others are a blend. Some styles work better for one person while a different style works better for another. And in some cases, it’s just a matter of personality. Isn’t your family worth the effort, to make a really good try?
But, if you really have tried and the decision has been made, then …
2. The Emotional Process of Separating
Sadly, sometimes counseling cannot save a marriage, or relationships may be so toxic that it really is best if people decide to separate. Separation is not just a one time event. It is a process that involves separation of emotional, financial, physical and parenting lives. As a practical matter, separation happens by degrees and over a period of time. Often, the person who first physically leaves a marriage may not have been the first one to leave in an emotional sense. The process of separating will, eventually, require rearrangement and separation of not only emotional attachment, but also physical living space, finances and bank accounts, property, and parenting arrangements. Other issues couples will face during the process of separation are things like when and how to tell the children and other family members, and timing of the various business and property transitions.
The process of deciding to separate also includes making a decision about that will be used in obtaining a divorce and making this final separation into a legal event, with a complete and legally binding marital separation agreement. In my opinion, it is very important to separate the emotional aspects of divorce from the business and legal side. This is challenging to do, but it is important. Acting upon emotional needs or impulses in the legal process is both counterproductive and expensive. Most people find assistance of an individual counselor more helpful in dealing with divorce than the financially expensive and emotionally unsatisfying alternative of playing out these issues through the court system.
3. Deciding on a Process
The legal and business side of divorce is divided into two stages.
A. In the first stage, a couple negotiates how they will separate their joint lives to create two separate and independent lives. This involves emotional adjustment, physical changes in living arrangements, financial adjustments in the family budget, division of property, and renegotiation of parenting arrangements. After these issues are negotiated, most people formalize their agreement by entering into a Marital Separation Agreement (often called a MSA).
B. In the second stage, a court is asked to approve the arrangement. The court is only required to be involved in the decision process regarding the settlement agreement if the couple cannot agree on their own, or if one party is using an imbalance of power (physical, financial, emotional) to perpetrate an unfair situation. If a couple is committed to principles of fairness, on the other hand, it is generally far preferable for them to negotiate their own agreement. Once the agreement is reached, it can be presented to the court for approval. But how can settlement be reached? What should be in the settlement agreement?
4. Negotiating a Marital Separation Agreement
How can you be sure your agreement has covered the things it needs to cover and that it is fair? This concern for fairness is good justification for seeking help from a divorce professional.
A. Mediator A professional divorce mediator has training in the substantive issues of divorce and helps parties reach agreement about their divorce settlement. A divorce mediator may also suggest use of additional professionals who can assist in the process of deciding key issues and also keeping the best interest of the children at the forefront of consideration. After the mediator helps you reach a settlement, then you will still need to go to court to have your settlement approved by the court and made into a final divorce decree. However, use of a mediator to reach the settlement bypasses the sometimes ugly and expensive adversarial litigation process that is involved when you ask a judge to decide how your personal affairs should be divided up. Mediation is not for everyone. For mediation to work, both parties must be committed to principles of fairness and they must have ability to make their own, voluntary decisions for themselves. You are currently visiting the web site of a divorce mediator.
B. Collaborative Divorce Attorney In collaborative divorce, both parties have an attorney who negotiates for them and helps them decide what other professionals may be needed to assist in reaching a fair divorce settlement that also takes into consideration the best interest of the children. A collaborative divorce attorney should be certified by the International Association of Collaborative Professionals (IACP). In addition to being a divorce mediator, I am a collaborative divorce attorney certified by the IACP.
C. Litigation Attorney If one side is not committed to fairness, then the court system will be needed to enforce principles of fairness, using methods such as interrogatories, depositions, requests for production, motions, and hearings. Generally speaking, this is the method that most attorneys are trained in and will turn to by default. This tends to be the most adversarial and expensive method for reaching a divorce settlement. Because I focus my practice on non-adversarial cases, I do not generally accept litigated cases.
D. Do-It-Yourself Parties often decide on a settlement between themselves. If they agree on everything, their divorce is “uncontested” and the legal process to have the settlement approved is relatively simple. However, mistakes can be costly. What if a party does not realize, for example, the extent of marital property, or what if they fail to make provisions for proper distribution of the marital property? What if they do not even realize what the options are? Even when parties think they have reached a full and fair settlement, it is wise to get feedback from a professional, asking them candidly if the settlement has covered all the issues and appears to be even-handed. I am willing to review DIY agreements and papers on an hourly basis.
e. A divorce professional can assist couples in determining which process is most appropriate for their need. For a consultation or initial appointment for a mediated or collaborative divorce, call 803-414-0185.
5. Getting the Settlement Approved
Most cases, including cases that start out being litigated in the court system, reach settlement without necessity of a full-fledged trial. However, the divorce cannot be finalized until papers are filed in court and the settlement has been approved by the family court. So, regardless of which process is used to decide on a divorce settlement, eventually papers must be filed to ask the court to approve the divorce. The question is, when will papers be filed. In an ordinary, litigated divorce papers are filed at the very beginning, to get the process started and includes asking a judge to decide the issues in the case. In a mediated or collaborative divorce, in contrast, papers are not filed until after a settlement has been reached.
To make it clear, in a litigated divorce, “papers” are filed right away, thrusting the parties into an adversarial posture of A versus B. In a mediated or collaborative divorce, “papers” are not filed in court until after the parties have entered into their own, voluntary Marital Separation Agreement. I do not think that most parties, when they consult an attorney about divorce, realize that “filing papers” immediately is not necessarily the only option!* This may seem like a small matter, but it illustrates a very big difference between litigated and mediated divorce. Litigated divorce assumes the parties will not be able to reach their own agreement and starts out the process by asking a judge to decide. This results in a process that is driven by the need for “evidence” in a “court” and requires the expertise of an attorney familiar with judicial procedures, taking control away from the parties themselves. In mediation and collaborative divorce, although professionals are consulted and direct the process to a large extent, the parties remain in control and all decisions are voluntary. Thus, mediation and collaborative divorce keep private family decisions within control of the parties, while litigated divorce takes that control away and places it in the hands of a family court judge. In some cases that judge is needed. In many cases, the parties are better served by and end up happier with a process that keeps them in control.
6. Obtaining a Final Order of Divorce
When the court approves the settlement and the divorce, it will issue a Divorce Decree. Generally, an attorney drafts this for the judge’s signature and also takes care of filing the needed official paperwork to make it final. When cases have been mediated by other mediators, or in cases where there truly is nothing left that is contested, I am happy to assist in legal representation to draft any separation documents that are needed, file legal papers to obtain the final decree, appear in court, and finalize the divorce decree.
After this, the couple may still have business affairs to finalize, and then the next stage of life begins, which is
7. Post Divorce Life
After the divorce, each of you will have separate physical, emotional, and financial lives. If you have children, however, you will still be tied together not just by your children, but also by grandchildren and a shared hope for all of the future generations of the family you share. The quality of your divorce process will be reflected not just in the sustainability and fairness of your financial divorce settlement, but also hopefully will contribute to the well being of future generations. My personal observation of the processes and of the long term effects of divorce on families is the reason that my practice is limited to the non-adversarial methods of reaching divorce agreement.
If you are interested in a divorce process that you maintain control over, in which you reach your own voluntary settlement, and which enables you to continue to co-parent with as little “collateral damage” to your family as possible, and if you feel both parties are committed to principles of fairness, please feel free to use the contact form on this site to request an appointment to discuss your options in person.
*Divorce law varies from state to state. Information on this web site should be taken with that in mind: it is information designed to be helpful, but it is not legal advice. Learn as much as you can about these topics by researching on the internet, but do not rely on information until you have consulted with a qualified professional who is licensed to practice in the jurisdiction where you reside. Information on this site is specific to the State of South Carolina, in the United States.
What, is mediation, and what makes it such a positive tool for conflict resolution within families? I hope to explain mediation and its benefits in this post. Mediation is often described as a “meeting” in which the parties meet with a neutral mediator who helps them reach agreement. Having a face to face meeting between two parties is common, but it is only one from among a wide range of options for mediation. Sometimes parties to a mediation do not meet together at all. Sometimes they meet numerous times. Some forms of mediation will involve an entire extended family or organization. Using modern technology, mediation can also take place internationally or over long distances. The key element of all these variations of mediation is that the parties utilize a neutral facilitator who guides a process designed to help them reach their own, voluntary and authentic agreement.
Mediation seeks to give parties tools they need to resolve their own dispute, using whatever information they believe is relevant, based on their own values and circumstances, and reaching an agreement that is truly their own and which they feel is fair and workable. Does it sound too good to be true? It’s not. The beauty of mediation is that, when parties are mutually committed to fairness, mediators have a large toolbox of conflict resolution skills and processes which can be utilized to help parties reach authentic, fair agreements that everyone can live with.
Sometimes individuals, families, or organizations wonder how they can possibly reach agreement, if they are stuck at an impasse already. The answer is that your impasse is not the end of the story. When you reach your own dead end and aren’t sure where to turn next, that means it’s time to call in a mediator, to see if they can help. The mediator is a professional who has many tools to help parties overcome barriers to agreement. Even if the strategies you have already employed have not resulted in a solution, it is likely that a mediator has more tools that can help you.
Divorce mediation is a key component of my practice, but my practice is devoted to all manner of conflict where relationships are key and where there are mutual, personal goals. I’m certified by the South Carolina Supreme Court as a Family Court mediator, but this is only the beginning of the story where my credentials as a mediator are concerned. Mediation within the court system is focused on cases already in litigation, involving only two parties, and focused exclusively on settlement of “this” case. While settlement through mediation in these cases is generally far preferable (for many reasons) to resolution through courtroom battle, it does dis-service to mediation if it is seen merely as a tool for settlement of an adversarial, litigated case. Mediation offers so much more. Mediation need not be seen as a step along the way in the legal process. Rather, mediation offers a distinctive and different paradigm for addressing conflict, with many benefits. Here is a chart that highlights a few of the differences:
|Empowers parties to make their own agreement based on their own individual values, circumstances, and priorities||Puts decision in hands of a stranger who must impose ruling from outside in, and based on general legal principles|
|Teamwork and collaboration is encouraged||The parties are pitted against one another as adversaries|
|Parties can implement custom tailored, win-win solutions||The judge making the decision in the case is limited to a set range of options|
|Parties can communicate what is important and mutually hear what is important to the other side, without regard to whether evidence would technically be admissible in court||Because the judge can only base a decision on reliable, probative evidence, much effort is made to keep the judge from hearing or seeing “unreliable” evidence|
|Parties may decide mutually to engage neutral experts to assist in formulating solutions||Each party hires an expert to “prove” their case is right and the other is wrong|
I am skilled in many types of mediation, including mediation for extended families and organizations. My signature style of mediation is called conflict transformation. While there are many aspects of transformative type mediation, a significant aspect is that I will be focused not just on “settling” a case, but on helping you — the parties — find solutions that are authentic to your values and circumstances and also which will be workable and sustainable for you in the long haul. I am skilled in many types and forms of mediation, including mediation for divorce and parenting issues but also in mediation and conflict coaching for extended families and for business and church organizations.
I trained in divorce mediation with Carl Schneider and Eileen Coen, a therapist-attorney team in Bethesda, Maryland, because I wanted the best training available, training which equipped the mediator not only in legal aspects of divorce (with which I was already familiar) but also with the emotional and psychological aspects of the divorce and family transition. My training also met the standards promulgated by the Association for Conflict Resolution as the starting point towards seeking certification as an Advanced Practitioner Family Mediator with that organization. (There is no divorce mediation training offered in South Carolina which accredited to meet published educational standard for this training.) I have additional and specific training in mediation of elder care disputes (Zena Zumeta and Susan Butterwick of Ann Arbor, Michigan), church conflict and disputes (Richard Blackburn of Lombard Mennonite Peace Center), special education issues (Cotton Harness through S.C. Department of Education), facilitative style mediation for certification as a S.C. Circuit Court mediator (my initial 40 hour training), and training as a community mediator (Beth Padgett through Community Mediation Center). As an attorney, I have worked on a wide variety of cases through my former work as an appellate court law clerk and staff attorney and as a lawyer for state government working on civil, criminal, and administrative cases and issues. I am also one of a handful of attorneys in South Carolina who is certified as an interdisciplinary collaborative professional by the IACP.
The most common scenario for people to consult with me about mediation is when they anticipate getting a divorce. I would like to say a word specifically about mediated divorce. There is a world of difference between “mediated divorce” and “divorce mediation.” Let me explain. The paradigm of mediation is neutral and non-adversarial. The parties to mediation are engaged in common search for resolution of their conflict, but they are not adversaries. The parties to litigation, in contrast, are pitted against one another in an adversarial, “A versus B” mode. Mediation is used in litigated divorce, but within this already-hostile context, to settle the case. Mediation in a mediated divorce, in contrast, never pits the parties “against” one another. The parties can cooperate and act as a team, even though they are divorcing, to formulate the best possible solutions available for their family in the changed circumstances. The focus of my family practice is not mediation within the context of litigated cases, but rather mediation as a model for helping families address challenging conflict, which may or which may not involve court action, depending on the individual needs and circumstances of each case. When cases are in adversarial mode already, I am happy to assist in settlement. However, most people who come to me for divorce mediation are operating in the non-adversarial paradigm.
If this sounds good to you, be aware that a mediated divorce is not going to happen unless you are pro-active to seek it. If a party seeking resolution of family conflict consults first with an attorney who tells them they need to “file papers,” this means that the attorney already is in the mindset of asking a court to decide the case for you. Filing papers in court takes power away from you to resolve your case and places that power in the hands of the judge. It also sets you up to require the expert assistance of the attorney to manage the process.
If you are considering a mediated divorce, I encourage you to call and arrange a face to face meeting to discuss mediation as soon as possible. Ideally, both spouses should be involved in this decision process. (If you have not discussed divorce with your spouse, then you are likely not ready to consult with a divorce mediator. I suggest that if you have not yet broached this idea with your spouse, a marriage and family therapist is the appropriate professional for you to speak with at this time. I can refer you to appropriate professionals if you don’t know one already.) Ideally, parties will get help from a mediator after they have decided to divorce, but before conflict has become overheated and intractable.
In my office, there is never a high pressure sales job to mediate. My goal is not to convince everyone that they should mediate their case. In fact, some cases should not be mediated. My goal is for mediation to be available as an option in cases where it is a positive, powerful tool for helping families achieve healthy answers for tough family decisions.
To schedule an appointment, call 803-414-0185, or fill out the contact form below.
The purpose of this post is to answer the question, “What is a mediator?” A mediator is a trusted, neutral person who facilitates a process designed to empower parties to recognize find their own, satisfactory solutions to intractable conflict. Each word in the sentence above has important meaning.
Imagine that the road to divorce is like getting from one side of New York City (married) to the other side of New York City (divorced). You’re not sure how to get there, so you need some help from someone who does.
Most people just go hire an attorney. This is effective, but it might be a bit like hiring a Sherman Tank and a contingent of marines to guide your way.
The following standards of practice have been adopted by the Association for Conflict Resolution (ACR), by the American Bar Association (ABA), and by the Association of Family Courts and Community Professionals (AFCC). Adopted by these three organizations, they represent a broad consensus in the field. This family and divorce mediation practice adheres to these standards. Your mediator will be happy to discuss any of these standards with you:
You’ve tried everything to save your marriage. You don’t hate your spouse, but you’ve both decided that divorce is better than the other alternatives. You want to be fair, but you’re not quite sure what that means. One thing is for certain. You’ve heard how awful the divorce process can be, and you don’t want to end up bankrupting yourself and ending up enemies.
Does this sound like you? If it does, then divorce mediation may be the answer for you.