Using Mediation in DivorceUsing mediation in divorce is a way to resolve conflicts without having to go through an expensive and drawn-out court battle. It's so effective in helping couples reach an agreement on their divorce that many courts now require divorce mediation before a case is allowed to be brought to trial. For couples starting the divorce process, it's a great option to help them work out the various issues of their divorce. The following article can help you decide if mediation might work in your situation. Mediation Will Work For You If... So, you are getting divorced, and think you might want to resolve the terms of your divorce in mediation. Mediation is usually much quicker (or at least you set the timing); you have more control over the process and the results; it keeps the lines of communication open. So why not give it a shot? It's easier to start with mediation in divorce and, if it's not right for you, move to a more arms-length process, such as collaborative law or litigation - then it is to start with a more adversarial process, and try mediation later. Usually, the adversarial process burns bridges such that you don't want to sit in the room with, and try to talk to, the person who said all those horrible things about you! Both Agree to Mediation. The first, and most basic requirement for mediation, is that both of you want to mediate. Mediation requires two active voices in the room. The goal is to get an agreement that reflects what each of you needs, in order to move forward in your life. If you are not both willing and voluntary participants, then we will not have two voices, and we will come up with an unbalanced document (which should not even be called an "agreement" since it would not be the product of two people agreeing). Both Are Determined to Settle The Matter. I am continually astonished in my work, by the way that a situation can seem especially hopeless and bleak - and then the participants come up with amazing, thoughtful and creative solutions. There are times during mediation that I am (secretly) feeling, "Oh no, there's no solution." We end the session, and probably all feel bad - and then two weeks later, the couple comes back. We sit down to discuss the issue and find that - things have shifted a bit. New understandings have arisen. New ideas about ways to solve it come up. One idea stimulates another. Maybe it won't get resolved that day, but the problem has changed; and maybe it will be resolved at the next meeting. If you both want to resolve everything in mediation, and you keep coming back to the table to talk and to try, then you will be successful. Both Can Be Active Participants. Next, both people have to contribute to the discussion. This means that you have to be able to sit in the room together, and use your best efforts to listen to your ex, even when you don't agree with what he/she is saying. It also means that you will get in touch with your own thoughts, feelings, needs - and express honestly what you are thinking, and what you need, in order to move forward with your life. You may not always be able to think everything through right in the moment, and that's OK. Sometimes people think about things, sleep on them, consult with friends or whomever, and e-mail new reservations they have about an idea which was floated. Sometimes you come into the next meeting with this new clarity. But you both must be able to, once things have come clear - express what you are really thinking, even when you know it is not what the other person wants to hear. If you and your ex have a dynamic where one of you feels intimidated by the other, and you can't say what you are really thinking with him/her in the room - then mediation is not the right process for you. Neither person should be cognitively or emotionally impaired (e.g., severe depression) in any way that affects capacity to mediate. Neither person should lack capacity due to drug or alcohol abuse. You Both Want To Settle the Case, and Move On. Litigation is an outrageously expensive process. I have seen couples who have burned through all the equity they built up in their house during their marriage, on attorney fees. Why would someone do this? One reason is that they seek revenge. As one woman said, "I'd rather spend it all, or give it to charity, then see him get a penny of it." If you feel so angry at your ex that you want to destroy him/her - then mediation will not be the right process for you. Litigation allows you to spend money to torture the other person, so that is where you should go, if that's how you are feeling. (You can still mediate if you are angry. Most people who are separating/divorcing feel very angry at some point in the process - that is normal.) Mediation in divorce requires a focus on the long-term, and the big picture. You must think about your ex and - on some level - hope to honor your past love for each other, the years of your lives that you spent together - and wish each other well - or at least OK - in the future. If you have children - it sometimes help to think about the fact that your ex - no matter how terrible his/her behavior has been - is your child's other parent. Your children will do best if they have two stable parents who are able to give to them, and love them, when they are with each of you. Which means that (much as we all have moments where we'd like to) you can't have total destruction of your ex as your goal, if you want to mediate. No Hidden Assets - Financial Disclosure You can't make informed decisions if you do not have all of the information on which to base your decisions. In mediation, we will not have the power of the court behind us to compel people to produce credit card statements, bank statements, stock options, small business records, etc. Most couples who choose mediation feel confident that they know what each other has, and don't need to engage in formal disclosure. At a minimum, each person must be willing to voluntarily provide any information to the other person which is requested. Mediation would not be right for someone who wants to 'make a deal' without revealing their cards. No Patterns of Intimidation/Control If you and your spouse have a history of violence between you, you probably should use more traditional methods for negotiating your divorce. It is difficult to speak freely and express what you want if you fear that you will pay for your words later. Good mediation practice includes initial and ongoing screening for intimate partner violence. However, studies show that it is the victim herself who is the best judge of what is needed to keep her safe. If you have a clear belief that mediation is your best option, you may be able to find a mediator who is trained specifically in mediation for families who have experienced intimate partner violence, such as:
Return to top of Using Mediation in Divorce Rachel Fishman Green, Esq. has been running ReSolutions - Mediation/Legal Services in Park Slope, Brooklyn since 1995. Rachel has helped divorcing couples resolve conflicts concerning all aspects of divorce, including division of homes, time with the children, dividing small businesses, fair distribution of pension assets, child support, division of health and child care expenses for children, tax aspects of divorce, how to bring new girlfriends/boyfriends into children's lives. In the absence of hostility or intimidation, mediation in divorce can be very helpful in resolving conflicts and avoiding high legal fees. For more information on mediation, check out the following articles: Remember, legal information is not legal advice. For specific advice, please consult a lawyer. Home / Other Articles / Divorce Guide / State Resources / Divorce FAQS
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