Nobody walks down the aisle thinking about the day you will get divorced. Yet that may be exactly where you find yourself today. And in the midst of all the pain and turmoil, it may feel impossible to even imagine life after divorce let alone how you’ll get there. In this new weekly series, I’ll review each of the options—divorce mediation, collaborative divorce, and litigation. Each has its own pros and cons, but once you understand what they are, you can choose a path that feels right for your relationship and hopefully set a positive course from the beginning.
What is Divorce Mediation?
Divorce mediation is a voluntary settlement process. That means that the couple works together in a non adversarial way to reach an agreement that divides assets, assigns spousal support, and outlines child custody. Although each partner should have an independent attorney to review the final agreement prior to signing, the couple works jointly with a mediator (who may or may not be a lawyer) to draft the resolution.
Now, just because divorce mediation is intended to be non adversarial, doesn’t mean that it’s easy or that you’ll never disagree with your spouse when deciding certain terms. However, by working with a divorce mediator, you’ll both have a safe place to voice your needs—and get those needs heard. The role of the mediator is one of neutrality: He or she listens objectively and facilitates communication. The mediator does not advocate for one spouse over another but rather works towards what’s best for the couple as a whole. So when those inevitable bumps come along, the mediator helps you both navigate a way around them so you can continue moving toward your future goals.
That said, mediators do not help you hash out past hurts. They focus on the present and getting the couple to reach a separation agreement that is not only fair, but amicable. If there are still unresolved emotional issues unrelated to reaching a settlement, your mediator will refer you to a therapist, if necessary.
Are You a Good Candidate for Mediation?
If you can answer yes to most of the statements below, divorce mediation may be a good option for you:
• The decision to end your marriage is mutual. Meaning, that both parties are on the same page and have decided to separate, not reconcile. Perhaps for the first time in a long time, you both agree on one issue: a happier future means living apart.
• There is still an element of trust between you. Mediation requires voluntary disclosure of all financial assets, so it’s imperative that you both come to the table with the same level of knowledge of joint assets. If there’s a general history of mistrust in the relationship, financial or otherwise, divorce mediation may not be appropriate.
• You want maintain a control over the process and the decisions related to the divorce (as opposed to having an attorney do this for you).
• There is a balance of power between you and you can still communicate somewhat effectively. Many couples going through mediation are amicable and find they work well with this process. Divorce mediation is generally not recommended for people who are the victims of domestic violence or those who feel unsafe expressing their needs during the process. Often, the abuser will continue to try to control and manipulate the situation through fear and threats, leaving the victim disempowered again. However, some do find validation and strength through the process since mediators do not let one partner dominate the sessions.
• If you have financial limitations. For people who may have financial limitations, mediation is a cost effective way to get divorced. Comparatively, it is often the least expensive. This is important as one household becomes two and expenses quickly double.
Once an agreement has been achieved on all the areas of consideration (custody, child/spousal support, asset division, including property, retirement, investments), the mediator drafts a Memorandum of Understanding (MOU). When completed, each person takes a copy of the MOU to their attorney for review and advice. The MOU is incorporated into a formal legal separation agreement (or divorce agreement) that an attorney files with the court as part of the divorce process.
On average, you meet with the mediator for four to six sessions for two hours each. Some cases take longer depending on the issues to be addressed and how quickly couples can come to an agreement. Unlike traditional litigation, there is no retainer fee and couples pay as they go, often sharing the cost of the mediation (there is often a separate fee for the drafting of the MOU). However, the more you can communicate and discuss the terms of the settlement outside of your scheduled appointments, the faster and more affordable the process will be.
If there comes a time when the couple feels mediation is not meeting their needs, they can stop the process at anytime. The goal is always to make sure you get the divorce that’s right for you—even if the path there leads in a new direction.
Still have questions? Please call me for a free 30-minute consult.
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