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Mediation Article
   
 
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An Introduction to Divorce Mediation
Mediation is a viable option for couples who want to avoid the adversarial divorce process.
By Josh D. Simon
More information on Divorce Mediation:
pic-couple.jpg (15063 bytes) Prepare for Mediation: The Checklists

Tips for People Considering Mediation

The Mediation Alternative

For many people, the word "divorce" conjures up a stressful — even nightmarish — scenario where spouses battle it out in court and attempt to destroy each other's character and credibility. But it doesn't have to happen to you, and one of the ways that you and your spouse can survive the experience and preserve your finances, self-respect and relationships is through a consensual dispute resolution (CDR) known as divorce mediation.

What is Divorce Mediation?

Divorce mediation is a process in which you and your spouse work with a neutral 3rd party divorce mediator to reach a settlement. There is no time limit to the mediation, which is welcome news for spouses who need more than a few sessions in order to clarify their goals, views and expectations. There is also no limit as to what issues can be mediated (such as spousal and child support, assets, visitation, and so on) but, ultimately, all decisions must be deemed legal and appropriate by the courts in your jurisdiction.

And speaking of jurisdictions: different jurisdictions impose various rules and procedures for divorce mediation. In fact, some jurisdictions make it mandatory for spouses to learn about divorce mediation upon filing for divorce, in the hopes that they'll amicably settle their differences outside of court.

It's beyond the scope of this article to itemize all of the different rules and regulations in each jurisdiction. Suffice to say that divorce mediation is an approach that some couples have relied upon to make their divorce journey relatively smooth and even — believe it or not — peaceful and productive.

The Benefits of Divorce Mediation

Some of the broad benefits of divorce mediation have already been mentioned — including the most important of them all: it's not court!

There are many other key benefits that are worth highlighting; especially in light of what's at stake during divorce, and how quickly things can unravel and become nasty (or worse). These key benefits include:

  • Divorce mediation can save you money. If your divorce winds its way through court, you can count on huge legal bills, plus other experts that you'll need to bring onto your team (financial experts, child care experts, etc.). Divorce mediation isn't free, and you still may need to bring in expert legal and financial expertise, but it is normally less expensive than litigation.

  • Divorce mediation can save you time. Unless your divorce situation is incredibly simple (i.e. you have no children, few shared assets, and both you and your spouse are eager to put the marriage in the rear-view mirror ASAP), then be prepared for a relatively lengthy process. But with mediation, you and your spouse can reduce the time involved if you prioritize your goals, put your emotions aside, follow the guidance of the mediator and negotiate in good faith.

  • Divorce mediation is fair. Mediation doesn't promise an ideal, happy win-win outcome. That's unrealistic. However, a trained mediator can even out the level of the playing field by ensuring neither spouse will overpower the other with emotional or financial control. A skilled mediator will diffuse emotions and show you how to focus on your common goals and resolve your differences. This way, neither of you feel railroaded into accepting an offer. On some issues, you'll bend a little. On other issues, your spouse will do the bending.

  • Divorce mediation is private. This is a benefit that many spouses don't pay much attention to (or don't know about) until they wind up in court and are forced to state — on the public record — personal and financial information that they likely wouldn't even dream of telling their closest friend. Information about affairs, about substance, alcohol, physical and emotional abuse, about addictions, about their financial settlement… and so on. With divorce mediation, while these aspects may indeed come up, the information is kept private and your personal information is destroyed when the process is finished.

  • Divorce mediation can broker better long-term solutions. When you and your spouse co-create solutions on everything from alimony to visitation to who gets the family dog, there's a greater chance that you'll both be satisfied with those solutions in the long-term future. Compare this to having a decision imposed on you by a judge — which can be shocking and hard for you to accept.

  • Divorce mediation can preserve your relationships with your spouse and your children. During mediation, you and your spouse will learn how to communicate and negotiate without being adversarial. This is invaluable training that will be useful even after the divorce, especially if you have children. Studies have shown that, contrary to popular belief, divorce itself doesn't necessarily have a negative or even a traumatic impact on children. Rather, it's how parents behave during and after divorce that deeply influences children. Mediation helps you and your spouse put your personal agenda aside and co-create a parenting plan that's best for you and your children. Indeed, as the old saying goes, "marriages may end, but families continue." Divorce mediation can help make this old saying be something that you appreciate, rather than dread!

How do I Know if Divorce Mediation is for Me?

Divorce mediation is not for everyone, or every divorce situation. And while there's no hard-and-fast set of rules or consistent "checklist" to tell you if divorce mediation is a viable option for you, here are some situations when divorce mediation will work best:

  • When you and your spouse can communicate reasonably (or are at least willing to try). Keep in mind that, by no means do you and your spouse need to get along in order to attempt divorce mediation. You just need to be willing to communicate and, to some extent, exit your comfort zones and work together towards a shared goal: the fair dissolution of your marriage.

  • When there is a basic level of trust between you and your spouse. At any time, during mediation, you or your spouse can get up from the table and march into court. Obviously you want this to happen only as a last resort, and not at the first sign of stress, tension or trouble. Remember, divorce mediation isn't as brutal as court (which is adversarial by its very nature), but it's no picnic either. Be prepared for some ups and downs, and be willing to really give it an honest try before giving up.

  • When you're honestly prepared to end the marriage. This may seem like a very strange point, but there are many couples who, fundamentally, don't want to get divorced. And so they end up viewing the divorce mediator as a marriage counselor. This is an extreme mistake. Divorce mediators are not trained to patch up a marriage. They are focused on helping both parties co-create fair, reasonable and acceptable resolutions as part of the dissolution of the marriage.

What are My Next Steps?

If you believe that divorce mediation could be an option for you and your spouse, here are your next steps:


Josh D. Simon is a contributing writer for Divorce Magazine.


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