Divorce mediation is a viable option that should be strongly considered for couples contemplating or navigating a divorce. Unfortunately, many couples do not understand what divorce mediation entails, or why it is in their best interest to consider it.
What Divorce Mediation Is – and Is Not
The role of a divorce mediator is to serve as a neutral facilitator of the decision-making process between a divorcing couple. Those with a background in law are not able to represent clients during the mediation process, since they are hired by and work with the couple jointly rather than with just one spouse. Thus, mediation is not marital counseling or legal representation.
While traditionally the parties meet with the mediator directly, they are also encouraged to work separately and individually with attorneys throughout the process. Attorneys can provide them with legal advice specific to their circumstances, and can assist them in maneuvering through the required process of going to court to finalize their agreement. Mediators can only provide legal information–not advice.
As a divorce mediator facilitates the discussion and decision process, the couple is empowered to present their concerns in a safe environment where they are encouraged to be open and honest. As they learn about the legal and financial framework for their dispute, they are free to determine their own solution. This allows them to minimize the expense of court proceedings, reduce the emotional toll of their conflict, preserve ongoing relationships, and emphasize the well-being of their children, if any.
Duration and Substance of the Divorce Mediation Process
The number of meetings during divorce mediation depends on what issues the couple has and how quickly they can resolve them together. If a couple gets into a log jam where they cannot determine a mutually acceptable course of action, the process is prolonged. On the other hand, if the individuals are able to remain constructive, they may be able to continue conversations at home after meetings, which can expedite a resolution and lower the final cost.
Meetings can be scheduled as frequently as the parties want or need. It is recommended that we meet in two-hour increments, as this block of time is sufficient to allow us to be constructive without being exhausting.
In the first meeting, we go over background information, including what the parties have already discussed and agreed upon. I identify all the components they will need to address, some of which may not even have crossed their minds. For example, I remind them to consider how they will handle vacations, holidays, family traditions, etc.
We then determine who is in the best position to provide the missing pieces, such as information about household finances or employment benefits (health insurance, retirement, stock options). In cases where neither party is truly qualified (as in when a real estate appraisal is needed), we identify a third party who can assist. This sets the stage for future meetings.
Goal of Divorce Mediation
By the end of the process, the couple will have come to an agreement about how to handle each aspect of family life that will be affected by their impending divorce. If children are involved, this would include a parenting plan that should be the best plan under the circumstances. The parenting plan should be clear enough to be easily understood by the children, a judge, or anyone else who might read it.
Once we have covered all the necessary ground, I draft a divorce agreement which the couple reviews with their individual counsel. Sometimes they may think they have captured what they want until they see it in black and white, at which point they may feel the need to revise it. It is important to keep working at the agreement until the couple has a final product they can both live with, since these decisions will affect them for the rest of their lives. While certain aspects can be modified down the road (such as if income or circumstances change), issues such as property division are not able to be altered later on.
Divorce mediation offers a couple going through a divorce the opportunity to reach an agreement on their own terms rather than being handed down a decision made by a judge. It allows them to minimize conflict by focusing on strategically crafting an agreement that works for everyone, rather than focusing on negative emotions and selfish desires. It also helps them to avoid the higher costs associated with going to Court.
My next blog post will discuss the Divorce Mediator’s role.