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Mon, May

How Does Mediation Work For Divorce And Why It's a Better Choice

VOICES

THE BREAKUP - The decision to end a marriage is a difficult one, and you and your partner have chosen to move forward on separate paths. But besides navigating the emotional challenge, there are issues like child custody, visitation rights, and so on, that you need to agree on before starting life post-divorce. 

In that case, going for mediation to find common ground on these key issues can be a good idea. But before we show you why, what exactly is mediation? 

What's Mediation in Divorce?

Divorce mediation is all about taking your divorce process through a more collaborative approach to reach agreements on child custody, property division, and other important matters. 

So, instead of lawyers squaring off in a courtroom, you and your spouse sit down together with a neutral mediator. This individual helps you have constructive conversations and explore solutions that work best for your unique situation.  

The mediator doesn't take sides or make decisions for you. Rather, they use effective mediation strategies to facilitate communication and keep discussions focused on reaching a fair outcome. 

Here's how typical mediation sessions might unfold: 

•    The mediator will start by establishing ground rules for respectful communication.

•    You and your spouse will take turns sharing your concerns, needs, and goals for the future.

•    The mediator will ask clarifying questions and help identify common ground.

•    Different options and solutions will be discussed based on your specific circumstances.

•    The mediator will help you brainstorm creative solutions that meet both your needs. 

Once you've reached an agreement, the divorce mediator can help draft a formal document outlining the terms of your divorce settlement. 

Why Is Mediation A Better Choice?

Divorce mediation can be a better choice for the following reasons: 

Cost-Effective

(1) Lawyer fees can quickly drain your savings during a contested divorce. Reports show that the median divorce cost in the US is USD$7,000, with the average being between USD$15,000 and USD$20,000. 

(2) Mediation, on the other hand, typically costs a fraction of what litigation would cost. Statistics show that you'll likely spend between USD$4,000 to USD$5,500. 

You and your spouse split the cost of the mediator's fees, and sessions are usually shorter and less frequent compared to court appearances.  

Time-Efficient

(3) Reports show that court cases can drag on for months or even years. Mediation, on the other hand, can often resolve most issues within weeks or a few months, depending on the complexity of your case. This allows you to move forward with your life much sooner. 

Control & Flexibility

Say you have a young child, and you and your ex-spouse both want to maintain an active role in their upbringing. Through mediation services, you can discuss and develop a customized custody plan that ensures your child receives the love and support from both parents. This level of flexibility is often difficult to achieve in a courtroom setting.


Reduced Conflict

The adversarial nature of the court system can increase tensions and animosity between divorcing couples. Mediation, on the other hand, fosters a more civil environment. The mediator encourages respectful communication and helps you focus on finding common ground. This can be especially beneficial if you have children and want to minimize conflict for their sake. 

Confidentiality

Court proceedings are typically public records, meaning anyone can access the details of your case. Mediation, on the other hand, is confidential. The discussions and agreements reached during this process remain private unless you both agree to disclose them. 

Emotional Support

While a mediator isn't a therapist, they can provide a supportive environment for you and your spouse to express your concerns and handle the tough conversations. These mediators can also help you identify areas where additional support, such as individual therapy or co-parenting counseling, might be beneficial. 

There are many advantages to mediation. That's true. But just because it comes with advantages doesn't mean it solves all your issues. It also has its shortfalls and situations where it may just not work. 

Suitability and Limitations

The divorce mediation process offers a collaborative approach to resolving divorce-related issues, but it's not a one-size-fits-all solution. Here's a comprehensive look at when mediation might be a good fit and when it might be wise to seek legal advice: 

Signs That Mediation Can Work Well

When you have these telltale signs, mediation can work well for you:

Willingness to Compromise

If you and your ex-partner are willing and open to finding common ground, this approach may be for you. Divorce mediation thrives on collaboration, so a desire to work together towards solutions is key.

Respectful Communication

Despite the challenges, you and your spouse can still communicate respectfully with each other. Mediation relies on open and honest communication, so a basic level of civility can go a long way.

Shared Goals for Children (if applicable)

If you have children and both prioritize their well-being, then mediation can be a great way to develop a parenting plan that minimizes conflict and keeps your children's best interests at the forefront.

Relatively Straightforward Finances

If your financial situation is uncomplicated, with minimal assets and debt, then mediation can help with property division and any necessary spousal or child support agreements.

Desire for Control and Privacy

As mentioned, mediation is confidential. So, if you both want more control over the outcome of your divorce and prefer to keep the details private, then mediation offers a significant advantage over the public nature of the court system. 

Situations Where Legal Advice Might Be Necessary

These are situations where you'd need to consult your lawyer before committing to mediation:

Power Imbalances

If there's a significant power imbalance in the relationship, with one spouse being manipulative or controlling, mediation might not be fair or productive. An attorney can help ensure your rights are protected in such situations.

Domestic Violence

If there's a history of domestic violence or abuse (as is the case with 24% of couples who ultimately seek divorce), mediation is not recommended and can be dangerous. Seek legal representation. [4]

Complex Finances

If your divorce involves significant assets, substantial debt, or your ex-partner isn't being totally open about their finances, get an attorney. Mediators may not have the legal background to handle such complexities.

Impasse in Negotiations

If you and your spouse have significant disagreements on key issues, and compromise seems impossible, then litigation might be the only way out.

Extreme Emotional Distress

If you or your spouse are experiencing extreme emotional distress or difficulty communicating effectively, mediation might not be productive. Consider individual therapy or couples counseling beforehand to address these challenges. 

Consulting with a divorce attorney is always recommended, even if you choose mediation. An attorney can advise you on your legal rights and ensure any agreements reached in mediation are properly documented and enforceable. 

What Happens After Mediation?

Here's what typically happens next: 

Wrapping it Up

The mediator will take all the agreements you've reached and put them into a formal document called a Memorandum of Understanding (MOU). Think of it as a written summary of everything you and your spouse decided on.

Legal Review (Recommended)

While not mandatory, it's a good idea to have an attorney review the MOU before you both sign it. An attorney can ensure the document is clear, legally sound, and protects your rights. Consider this a final check-up to make sure everything is in order.

No Agreement? No Problem 

If you weren't able to reach agreements on everything during mediation, that doesn't necessarily mean it's a dead end. Here are some options:

•    Try again: Sometimes, taking a break and coming back to mediation later with a perspective can help.

•    Litigation: This is the traditional court route, where a judge makes decisions for you. However, be prepared for a longer and potentially more expensive process.

•    Other options: There are other forms of alternative dispute resolution, such as arbitration, where a neutral third party makes a binding decision. Discuss these options with an attorney to see if they might be a better fit for your situation. 

Remember, even if mediation doesn't resolve everything, it can still help narrow down the issues and make the litigation process, if necessary, smoother. 

Being Prepared for Success: What to Bring to Mediation

Having the right documents and information readily available can significantly improve the efficiency and success of the mediation process. Here's what you'll want to bring: 

Financial Information

Gather documents like recent tax returns, pay stubs, bank statements, and any investment or debt records. Having a clear picture of your financial situation will be crucial for discussions about property division and potential spousal or child support.

Custody Preferences (if applicable)

If you have children, come prepared to discuss your ideal custody arrangements. This might include outlining preferred parenting schedules, visitation plans, and any specific concerns or questions you have regarding child-related matters.

Important Documents

Bring copies of your marriage certificate, any prenuptial agreements (if applicable), and birth certificates for your children. Having these documents readily available can save time and ensure everything is on hand for the mediator.

List of Issues

It can be helpful to come with a clear list of the issues you want to address in mediation. This could include things like property division, child custody, spousal support, and any debt allocation. 

By being prepared with this information, you can participate in mediation more effectively. It demonstrates your willingness to work towards solutions and allows the mediator to guide discussions efficiently. 

In Closing

Mediation is a good decision to consider when you're parting ways. But as this guide has pointed out, it's not a one-size-fits-all. So, before you go down this route, consider reaching out to a professional qualified in family law. They can offer advice on whether this is the correct path for you and how to go about it.