Getting married is easy. Getting divorced is hard. Thankfully, mediation has made the process of divorce much less stressful and costly than litigating a divorce in court.
According to the Civil Mediation Council, 75-80% of cases settle on the day of the mediation itself, and another 10-15% settle shortly after.
Mediation has grown in popularity over the past 15 years. This article covers the basics of the alternative dispute resolution process known as divorce mediation. Here you will learn something about how divorce mediation has evolved and the advantages of mediating a divorce rather than litigating the divorce in court.
The Evolution of Divorce
How we divorce has been evolving for years. In past times, divorce was impossible. Then the law changed to allow divorce for adultery, cruelty, or desertion. Still, you had to prove these claims to terminate your marriage.
In most states today, you need only to assert ‘irreconcilable differences.” But that’s the only uncomplicated part. You cannot get a divorce except in a court of law.
Each state strictly controls the court divorce process. It is adversarial, expensive, and stressful to the parties and their children.
Divorce Court – Adversarial Process
The Courts View the Parties As Adversaries
The trial courts have traditionally and still do, view the litigants to divorce as adversaries. The result is that it pins one spouse against the other, emotionally damaging the parents and the children.
Getting divorced involves completing many forms and divulging personal and financial information. Those forms are filed with the court and served on your spouse, who is now officially your adversary.
The Misery of The Divorce Litigation Process
Whatever the marriage was like, the cost of treating your husband or wife as an adversary in a legal proceeding will be emotionally charged and sometimes crippling financially for both sides.
The only winners are the lawyers – and most of them hate their work and see themselves as caretakers and agents of misery.
The Court Is In Control of All Divorce Issues
The court will exert strict control over custody, parenting, and child-support arrangements if there are young children. Too many parents fail to appreciate the profound emotional ties between child and parent until the family unit ends.
For children, a divorce can feel like an “atom bomb” in their lives, and the emotional scars it causes can last well into their adult years.
The Mediated Divorce Option
Without giving up your rights or your lawyer to help you understand and navigate the complexity of the divorce process, you can achieve the dissolution of your marriage without adding to the stress and emotional damage while minimizing the expense.
What Does A Mediator Actually Do?
The mediator’s primary objective is to assist and facilitate a mutually acceptable resolution to the party’s differences. The mediator does not represent the interests of either spouse. Instead, it is the official role of the mediator to function as an unbiased referee between the parties and, in most cases, with the advice and consent of their counsel.
What Happens At The Mediation?
The mediator usually begins the mediation process by explaining the mediation process. It is customary for the mediator to explain the divorce law process to the parties and the probable outcomes if they cannot resolve their disputes in mediation.
The experienced mediator will make a convincing argument that the parties have a valuable opportunity to solve their differences in mediation rather than have a stranger, usually a divorce judge, make those decisions for them.
The mediator will likely focus on persuading the couple to reach their own agreement on key custodial and property-division rights and avoid the risks and expenses of going to trial.
The Settlement Agreement
If the divorce mediation is successful, the mediator will draft a mutually agreed settlement agreement. A copy of the draft marital settlement agreement is provided to each party and their counsel for review to ensure the draft settlement agreement accurately and legally reflects the essential terms and conditions agreed to by the parties.
When and if divorce mediation results in an agreement or settlement, known as a marital settlement agreement, the mediator has the legal power to legally bind the agreement on both parties.
Common Objections To Mediation
Both our lawyers are settlement-minded, so why should we spend more money by hiring a mediator?
Being an advocate often causes a lawyer to respond aggressively or initiate preemptive strikes that the other party finds threatening. It is difficult for a lawyer to take care of a client and play the role of a mediator at the same time.
Mediation may be unnecessary if the lawyers can work together and settle the case quickly, amicably, and inexpensively. In truth, this rarely happens.
One way to view the mediator’s role is like taking out an insurance policy that safeguards the neutrality of the process. Having a mediator ensures you will benefit from a trained problem-solver that has the respect of the attorneys and is uniquely situated to rein in the attorneys should they assume an overly adversarial and non-constructive posture.
Isn’t mediation just another form of dual representation, with all the limitations that such conflict situations carry?
In preventive mediation involved in premarital agreements, adoptions, and putting together a family business, the mediator’s role of putting together and building harmonious relationships seems very much like dual representation.
Unless there is a written waiver from all parties, a single lawyer must withdraw from representing two clients when conflicts appear irreconcilable. Conflicts, real or apparent, are generally present in virtually all dual representation situations.
As a neutral third party, the mediator represents neither party.
Can mediation help even between couples bent on being vindictive and uncooperative?
Since over 90 percent of cases settle, the issue isn’t whether it will settle but when, how, and under what transaction costs. Many jurisdictions now have mandatory mediation on both parenting and economic issues.
In litigation horror stories, lawyers are often the victims, left with a lost stomach lining, unsatisfied clients, and unpaid receivables.
A primary but less-known function of mediators is to provide consensual case management that can impose some structure on the chaos and still give lawyers the freedom of traditional advocacy that judicial case management can take away.
How do divorce mediators justify their fees?
Some divorce mediators may overcharge, and others may not produce a process or result worth the expenditure. However, even with the use of a mediator and independent consulting lawyers, the cost of a mediated divorce may be far lower than a case directly negotiated between two adversarial lawyers.
It is undoubtedly lower than litigated divorces. Even co-mediated divorces do not increase fees compared to mediated divorces. Parties may benefit from an interdisciplinary team that can often bring settlement faster and more comprehensively than working with a sole mediator.
I know that mediators should not give legal advice. How can parties make a meaningful agreement if they don’t know the law?
You are correct that a neutral mediator should not give legal advice – that is, tell the client what to do or what decisions to make. However, mediators differ in the amount of legal information they provide the parties.
Benefits of Divorce By Mediation
A mediated divorce is an intelligent and drama-free way of reaching a final resolution in your marriage. In fact, most courts across the country encourage mediation. A mediated divorce is a practical and healthy choice for divorcing couples. It helps avoid the stress of litigation, saves money, and is thorough and quick yet offers all the professional help you may need to safeguard your rights and protect your children.
Less Expensive
A mediated divorce is less expensive because it’s faster and more direct. Most couples come to mediation willing to work on the issues and to learn how to communicate better. That means a less expensive divorce because reaching an agreement is always cheaper than a trial.
Less Lawyer Time Means Less Money Spent
In mediation, your lawyer is focused on your case and has one purpose, mediating your case. Your billable time is only a small fraction compared to litigating and trying the case.
Your lawyer is not spending hours in court waiting for the judge to hear your case or at their office, billing for numerous phone calls and drafting motions in preparation for trial. Their fees are always lower in a mediated divorce than in a litigated divorce ending in the trial.
When You Mediate Is Up To The Parties
Parties won’t have to wait a year or more for a court trial. Mediations usually take a month or two, depending on how busy the mediator’s calendar is.
Work Out the Details Without Court Pressure
The entire process can be over in hours in simple matters or a few weeks for more complicated issues if the parties are willing to focus on their mediation and do the necessary work. This quick resolution allows people to move on with their lives relatively quickly.
Mediation Lets The Parties Control The Process, Pace And Outcome
Parties can choose to make initial interim agreements in mediation and then put the matter on hold for months until they are ready to start discussions for a final settlement.
Parties Stay In Control of The Process
A significant advantage of mediation is that the parties can control the order of the process. They can do so if they wish to wait a few weeks or months following the separation.
They can also do so if they want to use mediation while still in the same home to plan their separation long before any court involvement has commenced.
Parties Move At Their Own Pace
Often it’s best for couples to have a temporary respite following the separation, holding off on the mediation until both are emotionally ready to begin. Also, the parties can (and should) use the mediation process to obtain necessary information and expert input to make informed decisions.
Parties Retain Control Over The Outcome
Divorce mediation is a way to accomplish your divorce that allows the couple to retain complete control of the outcome, both custody and care of any children, and the property settlement.
A mediated divorce is accomplished with your attorney, and if other professionals are needed, the mediator will suggest them. The mediator and the party’s lawyers are there to help, offer information and suggestions, and use specialized training to assist the two of you in writing up an agreement that is fair to both of you and in the best interests of any children.
Mediation Divorce Lawyers
If you have any additional questions or concerns, contact a divorce lawyer with substantial experience in the divorce mediation process.
