Divorce Mediation is a well established, client friendly and cost effective way for spouses to reach a settlement of their divorce related issues. These general divorce issues, which must be addressed in any divorce settlement process, are division of marital property, child related agreements and child support and spousal maintenance. Whether parties litigate these issues at trial or choose a more cooperative and collaborative approach like mediation, the issues remain the same and must be addressed before the case is resolved
The use of mediation is foreign to many divorce attorneys. Disagreements must be dealt with creatively rather than employing the threat of litigation. The divorce mediator seeks to resolve disagreements by such means as creative problem solving, the use of non-threatening dispute resolution approaches and an ethic of supporting open lines of communication between the parties. One important goal of mediation, especially when continued joint parenting of children is involved, is to support cooperation in the transitioning relationship between the parties.
One of the benefits of divorce mediation is the directness of the communications between the parties. In the traditional adversary system, the process starts with the attorneys conversing with their clients; next, the attorneys must explain and interpret the client’s point of view to the opposing attorney; after that come the settlement negotiations with the attorneys trying to balance the needs of their clients against the positions of the other party; and this can go on for some time. One can imagine how costly, time consuming and distorted communications can become, especially with the layers of defensive arms length negotiating and strategizing that is inherent in the adversary system.
Because the clients and the divorce mediator are working together in the mediation process, the lines of communication are direct and open. The mediator can insure that each party states their needs on the issues raised, as well as listens to and understands what the other is saying. This greatly lessens and can often eliminate confusion and unnecessary complexity. It also allows the parties’ sessions to be used expeditiously and serves to reduce the clients’ frustration, stress and costs.
Divorce mediation is a voluntary process and encourages the parties to make a good faith effort to reach agreement. There is no legal obligation to mediate or to reach any particular result. In order for the mediation process to have a clear path forward, the parties must have determined beforehand that the marriage is ending and that all questions of fault and who is to blame will be disregarded. Further, it is not the role of the divorce mediator to serve as a marriage counselor or counsel the parties to reconcile their differences. Further, divorce mediation is most likely to succeed when the parties conduct themselves in a spirit of cooperation and with a willingness to listen to the other.
The divorce mediator will not serve as arbitrator, nor will the mediator make decisions for either party or advise either party what they should or should not do. It is the job of the mediator to furnish the factual and legal information necessary for the parties to make informed decisions. The attorney/mediator does not and will not represent either party nor will the mediator provide unilateral strategic or other specific advice to either party. In mediator each party will be encouraged to assert his or her own needs and to respect the needs of the other party.
Divorce mediation will be conducted at mutually agreeable intervals in approximately two hour sessions. The divorce mediator is responsible for the effective use of the process, and the parties are responsible for the settlement decisions made in mediation. Each party will voluntary disclose all relevant facts, documents, statements or other information needed to make informed decisions. During the course of mediation, neither party shall undertake a change in the parties’ assets or obligations without the consent of the other party. As best as possible, the financial status quo shall be maintained.