In my last post I shared that I’m seeing more divorce requests than ever come into my office in the pandemic era. In that post you learned that Mediation is another option instead of a traditional long and drawn-out court process, a process exacerbated by the Coronavirus pandemic. To recap: Litigation is the tried and true — and sometimes necessary — way of resolving contentious Family Law matters, but Alternate Dispute Resolution (ADR) methods may be preferable in many cases in terms of time involved, stress multiplied, fees incurred, costs charged, etc. The first alternative that should be considered is Mediation.
Now that you know what it is, it’s time to talk about how Mediation specifically addresses Divorce/Custody/Support/Equitable Distribution.
Some families and some situations call for “A Quiet Divorce” to keep the details of their divorce out of the public eye. Troubled couples with high visibility, income, or wealth may wish to use a private method like Mediation to keep their divorce terms away from public scrutiny for personal, business, or financial reasons. It is a method for resolving disputes collaboratively. In Mediation, people work together to identify, discuss, and jointly resolve the issues in dispute.
Mediation offers significant advantages over litigation and other processes, such as:
- Saving time and money.
- Preserving valued relationships, especially if children are involved.
- Reducing stress and animosity.
- Making the parties more invested in the outcome.
Most divorcing couples can’t communicate productively on their own. But given proper help, most divorcing couples are capable of deciding how to distribute their property and support their children, just as they did in tandem during marriage. A professional mediator meets with both parties together in an effort to negotiate a fair settlement. One spouse is never pitted against the other.
Mediation is best suited for couples who want to minimize lawyer direct involvement in negotiation and retain more control over finalizing the terms of their divorce. Spouses can use this process to resolve parenting issues as well as financial matters. Spouses meet jointly with a mediator, usually without their respective attorneys present. The mediator is not an advocate for either spouse, but is instead a neutral facilitator chosen by both parties. Mediators come from a variety of disciplines (e.g., attorneys, financial planners, or mental health professionals), who must have completed special training for creating an ability to deal with divorce issues. In Mediation you work together with the other person to resolve your dispute without a judge or jury or Hearing Officer or Master or other person telling you what your family’s future would be.
The mediator guides disputing parties through a process of identifying, discussing, and resolving the issues raised by the participants. The two parties themselves make all decisions, including what subjects are discussed, what additional information may be needed, and how each matter is resolved. The mediator assists the couple but does not substitute his/her judgment for theirs. The mediator helps them reach a mutual resolution on their own terms. The mediator controls the process, not the outcome.
The group of three people meet until either full agreement is reached or the negotiations fail. One of the most frustrating and painful aspects of litigation is the feeling that someone else controls your destiny. In Mediation, you are directly involved in all decision-making… so you need not worry that important decisions about your future will be imposed upon you.
Mediation puts you in control of the process, which helps reduce costs. The parties alone choose who will participate in the mediation, whether attorneys or other experts will be present, what will be the length and frequency of the sessions, etc. All discussions that take place with the mediator are confidential. A mediator cannot be called as a witness nor be forced to divulge any information should Mediation fail and litigation ensue.
Resolving a dispute doesn’t have to mean the end of an important relationship. The Mediation process encourages effective results and confidential communication by: a) Affording each person opportunities to have concerns addressed; b) Improving opportunities to find common ground; c) Encouraging clear communication; d) Deterring misunderstandings; e) Making it more likely that both sides can feel like they “won;” and f) Allowing for more open sharing at meetings since the parties get to keep the written settlement papers out of the files of the Prothonotary/Dept of Court Records.
In summary, the benefits of Mediation are:
- Speed: A mediator can meet with a couple as often as weekly. After about 4-6 sessions, the parties typically reach the point at which an agreement can be drafted. To properly prepare for litigation, lawyers may spend at least that long just collecting information.
- Cost: Expense is a function of speed and complexity. The combined fee for a mediated agreement is usually less than the retainer that one spouse may well have had to pay to just get his attorney started. All of a mediator’s time is spent working towards an agreement without being sidetracked by researching/filing/responding to/arguing pleadings, discovery, and motions, and combative correspondence.
- Professionalism: A good mediator should/will insist upon full disclosure by the parties and inform the divorcing couple of all relevant financial and child-custody issues and possible outcomes that must be reviewed openly and provided for in the agreement. The mediator will also help the couple overcome impasses in their negotiations without improperly/needlessly pressuring either party.
- Fairness: The world of divorce is not different from the world of marriage – not everything is “fair.” But two people who have worked to reach an agreement that both parties can live with feel far more satisfied with its fairness than a couple who are told by a judge how to conduct their affairs.
- Closure: In contrast to the litigators’ adage that “Divorce never ends” (since a drawn-out acrimonious divorce can create painful repercussions far into the future), mediators also serve to help divorcing spouses put the past behind them and get a leg-up on a better tomorrow.
In conclusion, a mediated divorce arguably offers people a better chance to start anew with a tailored framework that best suits their specific situation.