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
Mediated divorce is not the same thing as divorce mediation! This article explains why.
The term “mediated divorce” describes a process in which a skilled, neutral mediator helps the parties make all the decisions they need to make and reach agreement about the terms of their divorce BEFORE DIVORCE PAPERS ARE EVER FILED IN COURT. The term “divorce mediation,” as used by attorneys and the general public, in contrast, generally refers to a settlement conference held as part of a lawsuit, AFTER DIVORCE PAPERS HAVE BEEN FILED IN COURT AND JUST BEFORE TRIAL. The differences in paradigm and process result in two creatures that are as different as a horse and a zebra.
Just as a zebra and a horse both have four legs and run, mediated divorce and divorce mediation both (a) involve use of a neutral mediator, and (b) can be used to arrive at settlement terms of your divorce agreement. There, the similarity ends.
To understand why the rest of the processes are so different, one must first understand the basic issues and process involved in divorce.
Divorce has many legal aspects, but there are also many aspects of divorce that are more practical than legal. Many aspects of divorce involve changes that occur gradually over time. Some of these aspects are legal, but most of them are not. Most of the process of divorce includes separating and detaching emotionally, financially, and establishing two separate, independent lives once again.
Thus, the process of divorce involves separating and re-establishing boundaries, reshuffling of parenting plans and schedules, rearrangements of finances, re-titling of property. 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 support two separate households utilizing income that used to support just one,
(d) reaching a fair property settlement,
(e) reaching some sort of solution with regard to how to parent children -> and then …
(f) 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 most of these issues for them, particularly (c) through (e), and likely including the terms of (a). The attorney most likely will, as a first step, file legal papers asking the court to decide these issues. This legal paper, called a Complaint, creates a lawsuit which is set up as Party A versus Party B. This is what is called a “litigated divorce.” When someone serves or says they have been served with papers for divorce, the “papers” they are referring to is the Complaint and its accompanying paperwork. This initial filing of a lawsuit 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 follows a different process entirely.
Mediated Divorce: In a mediated divorce, parties hire a neutral mediator who guides them through discussions and factual investigations designed to help them understand the issues, know their options, and reach agreement on every single one of these issues voluntarily. The mediator seeks to empower the parties to make their own, best decisions and reach authentic agreement, so that there is no need to ask a judge to decide their personal affairs for them. The emphasis is on joint problem solving and on finding solutions that both parties feel are fair and sustainable for both parties and for the children. After agreement is reached, a contract is drawn up which lays out the terms that have been agreed upon. Only after those terms are agreed upon do the parties file papers and go to court to ask the judge to review their agreement and finalize their divorce. The resulting court action is adversarial in name only. The court system requires one person to file papers and be the Plaintiff, but after the terms of a divorce have been fully mediated and both parties are in agreement as to the terms of their settlement, there is nothing (or very little) that remains in contention.
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.”
Some may ask, “Why is a mediator needed?” The answer is that a mediator is needed because most people don’t understand all the issues that need to be decided. Additionally, 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.)
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. A more accurate description would be to call this a mediated settlement conference, which is the term most mediators use for it. A mediated settlement conference uses a neutral mediator to facilitate negotiations between the two sides of the lawsuit, both of whom are represented by attorneys in the negotiations. The emphasis is on “settlement of a lawsuit,” 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.
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.
When a divorce is truly uncontested, then I am happy to take your divorce agreement (if you have one), write it into a separation agreement, and then represent just one party to walk the uncontested divorce through the court process to achieve a final order of divorce. If you think you have an uncontested divorce and just want legal representation to walk it through the court process, please call 803-414-0185 to discuss the process for achieving this in the most cost-effective manner possible. Flat rates for this are available.
In today’s economy, many unhappily married people are seeking the cheapest way possible to get divorced. If you fall in this category, you have come to the right place, but maybe not for the reasons you think. In actuality, an uncontested divorce has the potential to be the most expensive divorce of all.
Uncontested divorce may seem the easiest way out. But, before you seek an uncontested divorce, please answer two questions:
If you get the answers to these two questions wrong, then a “cheap” divorce can turn out to be devastatingly expensive in the long run. Mediation with a divorce professional need not be expensive, and it helps ensure that you are entering into divorce with full knowledge of the issues and voluntary agreement on all of them. Read More