What is Divorce Mediation?
Divorce Mediation is a process in which parties who wish to divorce, agree to problem-solve together using one neutral mediator who does not represent either party. Sometimes each party also has a lawyer, but in most cases not. In Divorce Mediation, the parties are the primary negotiators. The role of the lawyers, if any, is to advise their clients throughout the mediation process as to their legal rights and obligations. In our mediation practice, husband and wife meet together with us to resolve disputes both during and sometimes after the divorce. As mediators we work to assist with communication and cooperation, so that the parties can reach agreement on otherwise difficult topics to discuss.
What is Marital Mediation?
Marital Mediation is a process for parties who may wish to stay married, or at least aren’t quite ready to divorce, but are having trouble getting along, and attempts to reconcile through counseling have not yet been successful. Sometimes there are legal avenues that can been explored to help parties solve problems short of divorce, such as separating finances, or discussing marital property agreements “in case of” divorce. As marital mediators, we assist couples in identifying boundaries they wish to set for their marriage, their spending, and their parenting. In some cases, marital mediation assists couples to stay married for a specific period of time, until the parties are ready to divorce (such as until the last child has graduated, or until the wife has obtained her college degree and can self-support). In other cases, marital mediation successfully enables parties to reconcile.
The mediator helps the parties to:
- Clearly define the topics they wish to address
- Collect all relevant information
- Develop possible options
- Discuss the meaning and impact of each option
- Identify their common and/or respective interests
- Understand each other’s needs, and
- Reach an agreement that both parties can live with
The mediator does not make decisions for the parties, and does not give advice. Rather, the mediator guides the communication process so each party can be heard by the other. It is the responsibility of the parties themselves to reach a final agreement. An agreement is reached only when both parties voluntarily agree. The outcome of mediation is an informed, voluntary agreement between the parties that does not become legally binding until the court approves it. Although we are happy to provide information about statutes and courtroom experience, our job is not to guess what your outcome will be in court, or try to sway one or the other party in a certain direction. We generally remind people that every case is unique, and every outcome case specific.
What is the role of the mediator?
A mediator is a neutral person who is trained to help others talk so that both people can better understand their problems and reach an agreement. A mediator does not take the side of either party, and does not pass judgment on the parties or their problems.
The mediator’s function is to manage the process for the parties. The mediator keeps the conversation going and helps each person stay focused. The mediator sets the tone for the negotiations, discouraging intimidation, threats or bottom-lining. The mediator can remind the parties to take a more cooperative and less competitive approach.
Family mediators consider the emotions and feelings that the parties are experiencing, which can be a significant obstacle to settlement. Mediation does not mean “giving in” or “giving up.” It provides a positive environment in which the parties can find practical solutions that work for both of them. With a trained mediator, each person can trust that he or she is not going to be abused or taken advantage of by the other.
Do I need a lawyer?
Mediation does not get you through the legal process of divorce. Some people involved in mediation retain an attorney to do the legal work and advise them throughout the process. Others fill out and file forms on their own with the help of a Pro Se Divorce group. If you and your spouse are going to be joint petitioners in the divorce, we will help you fill out the forms, assist in completing them, and give you instructions for filing them with the court. We always strongly recommend to my mediation clients that they obtain at least one consultation with an attorney before signing any agreement reached in mediation.
What if we can’t reach a final agreement?
There is more to mediation than merely reaching final agreement. Sometimes only some of the issues will be resolved. This narrowing of issues limits the time and expense of going to court. Other times the work done in mediation sets the foundation for a negotiated settlement that will be reached at a later time, or the parties may return to mediation after some time out of the process.
Statistics indicate that over 80% of all mediations result in settlement. This is true even when all prior attempts at settlement have failed, when the parties were pessimistic about the prospects of settlement and when the parties have spent substantial amounts of time and money preparing for trial. With such a success rate, it is wise and relatively inexpensive to try mediation. You have little to lose.