Once a decision has been made to divorce, many more decisions follow. My goal as a divorce mediator is to help people make good, informed choices as they navigate the many important decisions they must make during this life transition. If you’d like a consultation to discuss your options, please fill out the contact form on this site or call 803-414-0185.
An immediate, and important, decision is what kind of process to choose for a divorce. One might ask, “Do I choose legal and court processes to force decisions on my spouse and myself, or do I hope to reach an amicable agreement? Should I try mediation or not? Should I use a lawyer who promises to fight for me, or should I take a chance on someone who is more willing to discuss pro’s and con’s?” And lastly, “should I consider mediation first, before I choose litigation? Mediation is something I’ve heard of, but what are the risks and benefits?”
Not everyone even knows that there are choices for how to obtain a divorce. Mediation is a deliberate choice one must make at the outset. This is because, if a person just goes to an attorney, it is likely the attorney will immediately implement the tools that most attorneys are trained to use: file court papers asking the judge to make all the decisions for the parties concerning their living arrangements, support, child custody, and temporary property division. The litigation model immediately pits parties against one another as adversaries. This has immediate consequences:
- The way the papers are worded, and the way the papers are served, can cause hurt feelings right away
- If one party files a paper, the other feels forced to respond defensively
- The request for relief from the court puts all decisions in the hands of the judge rather than keeping decisions within the control of the parties
- Having a stranger in control of all decisions creates incentive for parties to jockey for position and focus on evidence to convince the stranger of their position, rather than to focus on truth or genuine best interests of the parties
- Assuming parties were capable of voluntary exchange of information, the excess paperwork involved in court litigation spends money needlessly
- Assuming parties were capable of negotiating on their own, the initiation of court processes results in each being required to hire an expert in court processes, namely attorneys
- Spending the family budget on attorneys may reduce the budget available to spend on other experts that may be needed, such as counselors to help with adjustment or parenting issues or financial experts to help with asset division issues
Divorce mediation attempts to avoid all these problems:
- Mediation is non-adversarial. Even if parties have been locked into argument, the mediator will help parties communicate and work together for their common goal of separating amicably
- Court papers are not filed until after an agreement has been reached
- Parties work out their own solutions rather than asking a stranger to decide for them
- The confidentiality of the mediation environment and the fact that mediation discussions may not be used later in court encourages candid discussion of pro’s and con’s of various options
- No resources are spent on litigation, if litigation is unnecessary
- Parties are encouraged to use attorneys as consultants, but the mediator rather than the attorney manages the negotiation process
- Once a satisfactory settlement has been reached, the attorney may be engaged to process an uncontested divorce, but complex legal expertise of litigation is not needed
- Resources that otherwise would be spent on litigation may be reserved within the family for other things
Even though mediation offers many benefits, there may still be many unknowns. Some common fears may be, “What if I try to negotiate, but my spouse won’t agree? What if, while I’m negotiating in good faith, my spouse is using the delay to hide money somewhere? If negotiations fail, won’t I have to litigate anyway?” These and many other important questions deserve serious thought and answers. For mediation to work, both parties must, indeed, be committed to principles of fairness. To enable each other to gauge fairness in some objective way, both parties must also be willing to engage in full financial disclosure. Part of the decision to mediate depends on the leap of faith each party must take, to take a chance that the person they once loved enough to marry will join in seeking a mutually fair solution. If both parties are willing to be fair, and if both are willing to engage in full financial disclosure, then there is a good chance their case can be mediated.
As a divorce mediator, I help parties who want to find a way to take the high road. Even when we are divorcing, it is possible to do so respectfully and with dignity, and to achieve a result that is fair. Used properly, mediation doesn’t just reduce conflict. It actually helps parties achieve a better result than could be obtained through litigation. Why is this so? Most likely it is because lower levels of conflict result in more cooperation and thus a wider range of options. Cooperation enables parties to work creative settlements that a court could not order; it enables parents to continue to work together as parents; and by reducing legal costs it also helps parents keep more resources within the family unit.
My hope then, as a divorce mediator, is that mediation will produce the best overall outcome for the family as a whole, including the children. By helping people in this way, I am privileged not only to help parties make their best decisions for negotiation in the present, but also to choose a path that will result in a better future for many years to come, for themselves, their children, and their grandchildren.
A primary goal of mediation is to keep the mediation as low risk as possible. Either party to the mediation, including the mediator, may call a halt to the mediation at any time. Additionally, the parties may agree in mediation to settle all but one or two issues, leaving the remaining issues for the judge. If the mediation does fail, then with few exceptions the evidence produced for mediation cannot be used against the party later in court. Hence, there is little to lose and much to gain from making a concerted effort to mediate the terms of their divorce.
If you would like more information or are interested in scheduling a consultation for divorce mediation, please call 803-414-0185, or use the contact form on this web page.