A common divorce myth is that a layperson is incapable of understanding the complexities of a divorce, unable to make his or her own decisions, and should therefore defer to the attorneys. This attitude is the real basis of the unwarranted advice against mediating divorces with “complex issues,” i.e., those involving substantial income and/or assets. The truth is the exact opposite.
In mediation, you are the decision-maker. Among the core principles of divorce mediation are self-determination, informed consent (decision-making), and self-empowerment. An examination of these principles will help you understand the advantages of mediating your divorce, the best way to maintain control of your divorce and your life, both as to process and the ultimate decisions, regardless of the so-called “complex issues.” Also, litigation — governed by the myriad rules of court — is a tremendously rigid process. By contrast, a well-trained, highly experienced mediator (i.e., one who has done at least several hundred mediations) can offer you great flexibility and lots of options, putting you in the driver’s seat while maintaining the integrity of the mediation process.
There is no substitute for self-determination — for you deciding how to resolve the issues unique to your divorce. Those decisions, like most important life decisions, are invariably based on imperfect information and don’t have “right” answers. You should make the decisions based on your own priorities. If you allow your lawyer to be the decision-maker, since he is a human being, he will inevitably be influenced by his own priorities, like billable hours, protecting himself against malpractice claims, and his preconceived notions about the “right way” to handle a divorce case. You may make mistakes, but so might your lawyer, and at least they will be your own mistakes from which you can learn rather than just being a victim. The mediation process allows you to become informed about your options including, when necessary, relying on the advice of the same types of professionals used in litigated divorces (a lawyer, a forensic accountant, a child psychologist, etc.).
When I served on the Divorce Law Study Commission, the most common complaint I heard was about the debilitating sense of being “out of control” during the divorce. The self-empowerment focus of mediation is crucial to putting you in the driver’s seat. Taking control of your divorce, and making your own decisions is part and parcel of taking control of your life. Divorces are all about people embarking on a new life. Your decisions concerning the process you use, and how you go through the divorce, are creating a template for you for how you will lead your life after the divorce.
Douglas Schoenberg is an accredited divorce mediator (NJPAM), attorney, practitioner member of the Academy of Family Mediators in Summit, NJ.