Mediation is a respectful, private and creative way to resolve family disputes without court interference. Whether a couple is dissolving their marriage or ending a romantic relationship that may have resulted in children, mediation is most likely a far better alternative than litigation.
Mediation clearly is not what lawyers traditionally have done in divorce cases. Our adversarial system historically operated on the belief that a marriage was ending because someone was at fault, that each spouse had a right to virtually unchecked legal advocacy in court, and that warfare would ensue as each party and the lawyers sought to tear down the position of the other party in a winner-take-all duel. Truth and justice somehow were supposed to emerge from what too often became carnage. The fact is that there are no "winners" in litigated divorce cases.
Divorce mediation is not therapy or marriage counseling. Similarly, mediation is not designed to preserve or reconcile marriages. Most people who go through divorce mediation end up divorced. However, because hostility almost always is lower in mediation situations, studies show that most of the couples who successfully complete divorce mediation with a skilled mediator remain satisfied with their settlements and abide by them.
Description of Mediation Process
Divorce mediation involves a mediator serving as a go-between, consultant, adviser and facilitator to the two spouses, in helping them through the legal, parenting and financial issues of divorce. I will remain impartial in assisting a couple reach an informed and voluntary settlement. While I tailor my services to the needs of each divorcing couple, our mediation generally follows a seven step process:
- Make the No Court Pledge. The three of us sign a contract evidencing our commitment to resolve all divorce items without court interference.
- Create the professional team. Consulting attorneys will supplement my neutral expertise by providing legal advice to each spouse. Sometimes the couple chooses to get additional value by working with a neutral parenting or financial specialist.
- Identify and prioritize interests. This will help both spouses remain productive and forward focused as we proceed through the mediation process.
- Gather information. The three of us craft and implement the plan for gathering the financial and other information.
- Brainstorm ideas. At this stage of mediation, all ideas are encouraged and have potential.
- Evaluate options. We will analyze which ideas best satisfy the couple’s interests and seem realistic in light of the facts.
- Finalize financial and parenting choices. I will draft an agreement to be submitted to the Superior Court for approval so that it will become the couple’s court order.
- As a mediator, I do not have an attorney client relationship with either spouse. Therefore, my communications with each spouse are not legally protected by the attorney client privilege.
- I will disclose to one spouse the substance of all communications I have with the other spouse.
- Notwithstanding the lack of an attorney client relationship, I will not voluntarily disclose to persons other than the spouses and their lawyers, the content or substance of our discussions and communications.
- As part of our contract, both spouses will agree that they will not ask or require me by issuing a subpoena or summoning me to court, to disclose mediation discussions and communications.
- Self Control and Determination. The divorcing couple rather than a judge, lawyer, mediator or “expert” will make the important divorce financial and parenting decisions.
- Privacy. The “work” is done in the mediator’s office rather than the courthouse. The couple’s court file will be minimal and only one court appearance will be required.
- Better More Creative and Lasting Settlements. The post-divorce financial and parenting plans, being created by the couple, will address their particular needs, goals and concerns far better than something a judge might order on his own. Also, taking ownership of their settlement increases the long-run probability for adherence to the settlement reached.
- Time and Cost. Mediation generally is less time-consuming and less expensive than a traditional litigated or adversarial divorce. When two spouses are open with each other and communicate directly in the presence of each other and a competent mediator, the result likely will be more expeditious and less costly (both in economic and emotional terms).
- If mediation fails, stress may be prolonged as the parties move from mediation into the collaboration or litigation process.
- When they initially contact me, some people are uncertain about whether they want mediation, a collaborative divorce, binding arbitration or a litigated divorce. They say that they want me to be involved either way, but, if we start mediation and it fails, I would be disqualified from representing either spouse in litigation or a collaborative divorce or serving as their arbitrator.
- If there is an imbalance between strength and experience of the two spouses, whether in emotional strength or experience with children or financial matters, the weaker and less experienced spouse is more at risk.
- As the mediator, I am not in the customary lawyer's role as an advocate. I must remain impartial. Spouses in mediation sometimes have a hard time in dealing with this fact, expecting traditional loyalty and advocacy they associate with "their lawyer."
Mediation is appropriate when both spouses:
Mediation should not be pursued if:
- Want to be constructive and exercise respect, good faith and reasonableness toward each other.
- Want to put their children first.
- Desire to make full disclosure of all relevant financial and other relevant information in the termination of a marriage.
- Are emotionally ready and able to negotiate at the same table as their spouse in the absence of their own advocate.
- Have a generally trusting attitude toward each other, especially regarding financial facts and issues. Mediation can often be successful even when one spouse was involved in a romantic relationship outside the marriage if the trust level regarding finances remains high.
- Have a relatively similar level of sophistication about family matters, including children and finances. This factor is not always absolutely necessary, because, if the preceding conditions are met and the less sophisticated spouse can become sufficiently educated during the mediation process, the result is normally satisfactory.
- Domestic violence, verbal abuse or intimidation is present in the marriage.
- Either spouse expects the mediator to provide legal advice or tell him/her what to do.
- Either spouse has a mental or physical illness or addiction that is not appropriately managed.
Mediation requires three people who wish to go about terminating a marriage in a private and respectful manner. The success of mediation depends upon the candor, desire, sensitivity and competence of the three participants. If a husband and wife are committed to acting in good faith, dealing openly, respectfully and reasonably with each other, and if they retain and work with a competent and concerned mediator, the result should be positive.
In summary, if the necessary ingredients are present, mediation is a far better way to deal with terminating a marriage than is the old way of doing it.