Mediation – Why is this a Good Option?
Mediation is one of the most frequently used methods of negotiating a divorce settlement. In divorce mediation, you and your spouse hire a neutral third party, called a mediator, to meet with you in an effort to discuss and resolve the issues in your divorce. The mediator doesn't make decisions for you, but serves as a facilitator to help you and your spouse figure out what's best. It is a very good option that saves the parties a tremendous amount of money, but also allows them to part without the tremendous negative feelings that are brought about by the litigation process.
Anyone who is involved in a divorce should consider mediation as an option. Mediation can work for almost all couples and has a long list of benefits.
· Mediation is much less expensive than a court trial or a series of hearings.
· Most mediations end in a settlement of all of the issues in your divorce.
· Mediation is confidential, with no public record of what goes on in your sessions.
· Mediation allows you to arrive at a resolution based on your own ideas of what is fair in your situation, rather than having a solution imposed upon you based on rigid and impersonal legal principles.
· You can still have a lawyer give you legal advice if you wish.
· You and your spouse -- not the court -- can control the process.
· The mediation process can improve communication between you and your spouse, helping you avoid future conflicts.
While mediation is absolutely worth trying for most couples, not every couple belongs in mediation. For example, if there is domestic violence in your relationship, you should consider carefully before you agree to participate -- but don't reject mediation out of hand. Some people who have experienced abuse in their marriages find it empowering to meet on the level playing field of a mediation session; others find there's too great a chance of replicating the dynamics of the marriage and choose to have a lawyer do their negotiating for them. Also, because the mediator can't order either of you to do anything, a person who wants to delay the proceedings or avoid paying support can abuse the process by agreeing to mediation and then stalling the process. If you need decisions about support or other issues made early in the process, you can try to use mediation at the early stage to see if it would work for the entire process.
All that's required to make a divorce mediation successful is for both people to show up willing to negotiate and open to compromise. Don't reject mediation just because you and your spouse see a particular issue very differently -- in other words, don't give up before you've begun. Often the couples are able to work through their issues during the mediation and separate with a much better relationship than when they started mediation. Couples can often mediate most, if not all of the issues and if there are one or more remaining issues, you can bring just those issues to court if necessary. Mediation is a powerful process and many cases that seem impossible to resolve at the beginning end up in a settlement if everyone is committed to the process.
The Mediation Process
At the New England Mediation Center, we have a first meeting to explain the process to both parties. It will be held in a neutral office so that each party feels they are in a safe and supportive environment. The mediator will explain what you can expect from the process. The mediator will explain the basic rules of divorce which involves the separation of property, alimony, time schedules with each parent (including vacation schedules), child support and college education expenses. Then the mediator will meet with each of you in separate sessions so that the mediator can get your views or positions in private. The mediator is likely to ask some questions to clarify or get more information about what you've said. The mediator may also reflect back what you've said, to be sure that both the mediator and your spouse have understood all of your points. The same will go for your spouse.
The mediator will also take care of some housekeeping business -- for example, ask you to sign an agreement that says that you'll keep what's said in the mediation confidential and that you understand that the mediator can't disclose any of what goes on there if there's a court proceeding later on. At the same time, the mediator will try to make you feel comfortable by establishing a rapport with both you and your spouse.
The next step will be to assess where you and your spouse agree and where you need some work to get to agreement. Once you have a sense of what needs to be accomplished, you, your spouse, and the mediator will plan how you are going to accomplish it. It's very likely that you will need to gather more information, especially if you are dealing with property issues as well as child custody questions. (For example, if you don't know the value of your house, you can't have an intelligent discussion about a buyout.) The mediator will help you figure out what information you need and will ask each of you to commit to bringing certain things for the next session.
Negotiating an Agreement
When negotiations begin in earnest, the mediator may suggest that you deal with simpler issues first. Answering the easier questions builds trust and encourages compromise when it comes to the more difficult issues. Settling a divorce, like almost any other dispute, has an aspect of horse-trading about it, especially when it comes to the property aspects. If you let your spouse take the expensive stereo system that she spent so much time assembling, she may be more likely to agree that you can have the computer you have been sharing. That type of negotiating won't apply as much to issues relating to your children, of course.
Negotiating agreements isn't always linear. You may start at what feels like the end, and you may find yourself needing to gather still more information at various points in the process. The mediator will help you to stay on track and brainstorm options, will encourage you and your spouse to express your opinions, positions, and what's important to you, and will help you to listen to each other in ways that will make a resolution more likely. (Some of the ways the mediator helps you with communication will be the most valuable aspects of the mediation, as you will be able to take them away with you and use them in your ongoing parenting relationship.)
The two most important things you can do to make your mediation successful are:
· to be open to compromise, and
· to really listen and try to understand your spouse's point of view.
Understanding your spouse's position doesn't mean you have to agree with it. But it's possible that once you do understand what your spouse's real concerns are, you will have new ideas about how to resolve things. Your efforts at understanding will encourage your spouse to do the same, and you are more likely to reach a solution that works for you if your spouse really understands what is important to you.
Being open to compromise means that you are not attached to one particular solution -- you can't just put your idea on the table and expect your spouse to accept it. A compromise that works is one that takes both of your interests into account. Consider the possibility that your spouse might have valid ideas as well, and take the time to think them through instead of rejecting them out of hand.
Completing the Agreement
Once your negotiations are finished and you have found a solution, the mediator will write an agreement and, in many cases, a parenting schedule or parenting plan. These documents will be incorporated with the rest of your divorce paperwork and will become part of your divorce judgment, which means that a court could enforce them if one of you doesn't do what the agreements say you'll do. But this doesn't usually happen -- people follow agreements reached in mediation much more consistently than any other type of agreement or order, because the process ensures that everyone is truly comfortable with the terms.
Once your agreement is complete, the mediator will encourage each of you to have it reviewed by a separate attorney to make sure it is fair to you. The mediator is an attorney and is very experienced in divorce law, but it is a good idea to have it reviewed by a separate attorney to make sure you are comfortable with your agreement.
Court Approval of Agreement
The final step in the mediation process is to have the court approve the agreement. The court is required to do this in order to accept a final divorce agreement. The judge must make sure it is fair to both parties and that the children receive the correct child support.
Paying for Mediation
Mediation is paid for as you go through the process so you are not left with a large legal bill at the end of the session. Sessions generally last an hour and a half, but can be scheduled to meet the flexibility needs of the parties.
A Peaceful Resolution