What is divorce mediation?
March 2017. Mediation is a process in which a mediator helps parties settle their case, so they will not need to have a judge make decisions for them. Mediation is just one form of alternative dispute resolution (ADR). (Other forms of ADR include arbitration and collaboration.)
This article will focus on divorce and family mediation. Divorce mediation, simply put, is an opportunity for you and your spouse (or partner) to agree on your issues, settle your case, finalize your divorce, and put the legal conflict behind you.
Instead of having a judge make the decisions for you and your family, a mediator helps you work on an agreement outside of litigation, and outside the courtroom. The issues in your divorce agreement may include:
- Legal and Physical Custody
- Parenting Plan
- Other issues of concern for Children
- Distribution of Assets
- Distribution of Debts
- Other issues of concern for separating or divorcing couples
While you may be concerned about the reasons why you are getting a divorce, the focus of mediation is to provide you with an opportunity to explore a settlement of your issues. If you come to an agreement, your divorce will be considered "uncontested" as opposed to "contested."
A contested divorce is when you do not have an agreement. If you are unable to come to an agreement, a judge may be needed to make decisions on your issues for you. A contested case can be time consuming, expensive and stressful. When parties have an agreement, then their divorce can be processed as an “uncontested” divorce, or a settled case.
In a traditional litigated case, each party retains an attorney of their own choosing. Functions of the attorney includes negotiations. If they are unable to assist you in arriving at a settlement, then the attorney will try the case before the judge. Many attorneys attempt to settle the issues before filing the Complaint for Divorce, and if settlement is successful, then the case is processed as an uncontested divorce.
When you retain the services of an attorney, the attorney hired by you is responsible to represent you and your interests. Because of this, when there are conflicting interests, negotiations can often become polarized on positions and difficult to settle.
If you and your spouse or partner engage the services of a mediator, you will hire that mediator together. The mediator is a professional who will provide a service to both parties. If you are having difficulty coming to an agreement on the issues, the mediator will help both of you focus on the concerns behind your positions on the issues, and focus on helping you come to an agreement.
Your Mediator acts as a neutral facilitator of your discussions to help guide you through the process. By using listening and communication techniques and skills, mediation can help you think "outside of the box" for possible solutions!
Because the focus in on helping you move toward a settlement, mediation can help you “cut to the chase,” without wasting time and valuable resources.
While no one gets married with the thought of getting a divorce, if you and your spouse or partner have come to the conclusion that a divorce is inevitable, you can choose how to handle it. You can choose to dissolve your marriage in a dignified way.
A mediator will provide you with a time and a place to help you list your issues, exchange confidential documents, discuss concerns and issues, and help you explore opportunities for settlement. Mediation can help you resolve your issues outside the courtroom, in a private setting.
Your mediation can be tailored for your situation. Mediation can also address: Separation, Prenuptial Agreements, and other interpersonal conflicts.
Compared to litigated proceedings, Mediation can be:
- Less Costly
- Provide increased control over the resolution
- Compliance - because you work together
- Mutuality - parties work mutually toward a resolution
- Help preserve relationships
While many courts provide mediation programs, generally you cannot participate in these programs unless you have already filed a contested Complaint for Divorce. Once you do that, however, you must abide by court procedures for forms, timelines and deadlines.
If you choose to participate in private mediation before you file a Complaint for Divorce, you can do so without the concerns of court dates and deadlines. This could help put you in a better position of having control over your process. If you choose, you can have an attorney present during your mediation session; or attend the sessions alone and consult with your attorney outside the mediation sessions.
Mediation is not for everyone. If there is an outstanding domestic violence restraining order, you cannot participate in private mediation.
The couples I work with that are the most successful in mediation are those that, although they are getting a divorce:
- They still wish to come to a fair and equitable agreement.
- They have mutual goals of minimizing the impact of the divorce on their child or children.
- They may also share mutual goals of ensuring that they will each be “okay” when the divorce is over.
- They have a sense of trust.
- They are both aware of the finances and / or they are willing to fully disclose financial information in mediation, or directly to the other party.
- They want to settle their divorce as amicably as possible.
- They would like to address their issues in a private and confidential setting.
- They may have confidential issues or considerations they would prefer not to discuss in an open court.
- They realize that “time is money” and that by spending less time on process and procedure, and by going directly to the settlement process – they will inevitably save money compared to a litigated matter.
- They wish to maintain some control over the process of their divorce.
If you share the above points of view, and concerns, then you should consider if mediation is the right choice for you.
Once you are finished with mediation, you will receive a preliminary draft of the terms of your agreement, which you will each have the opportunity to review with individual attorneys of your own choosing. You can also consult with your attorney prior to mediation or between sessions.
Once the final draft of your agreement is reviewed and signed, you may also wish to use the services of an attorney to process your divorce through the court system. At that point, however, it will be an “uncontested” or settled divorce, and the procedures, and related costs, will be limited.
“Mediation, a good solution for a difficult situation.”
by, Virginia Maroulakos Rucinski, Esq., APM, March 2017.
For a more complete biography, please see: Biography