divorce mediation questions and answers

Nov 15

If you’ve found this site, chances are you’ve been ordered by a court to try to mediate your divorce, your attorney has recommended you try divorce mediation, or maybe you’ve just separated and you’re checking out different options. So what exactly is divorce mediation and more importantly, will it best serve your interests? Here are some common questions and answers to help you as you consider your path forward.

WHAT’S THE DIFFERENCE BETWEEN DIVORCE MEDIATION AND LITIGATION?

Divorce mediation and litigation are as different as night and day. The first difference is the objective. In divorce mediation your goal is to find common sense solutions together. Ones that work for you. Unlike litigation, no one wins and no one loses. Emotionally and practically, this distinction is huge. Especially if it’s necessary for the two of you to continue the relationship because of a business or as parents.

In divorce litigation you place all the control in the hands of attorneys and judges. By nature, the approach is confrontational. Each party assumes their way is right. The other person is wrong. Your attorney “argues” your point of view and offers “proof” to back it up. Your partner’s attorney does the same. The private details of your life become public. Both attorneys are determined to win at any cost. That’s what the two of you are paying them to do.

The battle can get long and ugly. And in the end, someone will lose. The problem is you won’t know who the “loser” is until it’s over and done. More importantly, you don’t have any control over the final decision. You’ve relinquished that right.

WHAT IF MY SPOUSE AND I ARE NOT COMMUNICATING?

In the heat of anger it may seem like heading to court is the only option open to you. You’re done arguing. Just let a judge decide who’s “right or wrong.” And sometimes it does come to that.

In most cases though, your best bet is to talk it out. Why let someone who doesn’t even know you make decisions that you will be stuck honoring? And worse, what if you don’t like the decision? At that point it’s like the old rhyme: “too bad, so sad”. A court decision is final.

In litigation you see only one side of the story, yours. In mediation you sit down with the right helper, called a mediator, and talk about your differences. To be sure, painful feelings will arise on both sides, but an experienced mediation professional can help you see through the emotion and find some common ground where solutions that will work for both of you lie.

DOES A MEDIATOR TAKE SIDES?

Absolutely not. Attorneys are hired to take sides and argue against the “opposing” party. But a divorce mediator remains at all times neutral towards you both and does not prefer a particular outcome. A skilled mediator offers a proven structure to help you identify issues, obtain information, clarify positions, break through gridlocks, and reach mutually beneficial solutions acceptable to both of you. You - not the attorney, not the judge, and not the mediator – have total control on choices. Nothing is determined without your consent. In mediation all decisions are made by the two of you.

IS MEDIATION CONFIDENTIAL?

Yes, divorce mediation is voluntary and confidential. You won’t be airing dirty laundry in public. In mediation you will be heard and your concerns addressed but only the final agreement document - that you both must agree on - is filed with the court. Mediation allows both parties to retain their privacy, respect, and dignity.

HOW MUCH DOES DIVORCE MEDIATION COST?

Divorce mediation costs a fraction of litigation. The costs of litigation are doubled immediately because each of you pays a separate attorney fee. Add to that the cost of document preparation, (pleadings, hearings etc.) photocopies, telephone calls… the list goes on and on. In short, divorces cost thousands and sometimes tens of thousands of dollars. In mediation, you split the hourly fee of the mediator between you. And there are no retainer fees; you pay as you go after each session. The total cost is based on the time it takes to address your issues.

HOW MUCH TIME DOES DIVORCE MEDIATION TAKE?

The time it takes to complete divorce mediation varies. Three factors that are unique to your situation are the number of issues you face, how complex they are, and the level of cooperation you and your partner bring to the table. But regardless of your emotional state or how many factors and complexities are at play, mediation always takes less time than litigation because you are working together rather than attempting to win a victory at any cost. By comparison, the wheels of litigation like the wheels of justice, grind slow. Every question posed and every answer given goes through a third party, the attorneys. The back and forth can take months and in some cases even years.

WHAT’S IN A DIVORCE MEDIATION AGREEMENT?

Divorce mediation agreements address three primary areas: Division of your current joint assets and debts; division of responsibilities concerning future financial needs of the family; and parenting plans if there are children. An experienced divorce mediator will make certain you don’t overlook anything important. And divorce mediation agreements can cover other non legal areas as well, such as pre-planning how you will introduce new partners to children. While courts are limited in the remedies they can order, mediation allows you to design a binding agreement for both legal and non-legal issues that’s tailor made to your needs. Thoughtful consideration and decision making now about how to make your divorce more workable can avoid future conflict.

ARE DIVORCE MEDIATION AGREEMENTS BINDING?

Once signed your mediation agreement becomes a binding contract. The agreement may then be used as the basis for an uncontested divorce. One of the overlooked aftershocks of litigation is that it solidifies and magnifies differences. Mediation offers an opportunity to sensibly and responsibly accentuate areas where you agree and shelter your children in the process. It can also save you from on-going costly litigation to enforce terms of the agreement where your money could be better spent elsewhere – like on your child’s college education. Studies show that people who craft their own agreement are far more likely to comply with its terms.

DO I NEED AN ATTORNEY?

You can achieve a successful divorce mediation agreement without an attorney. That said, even when the mediator is a lawyer, he/she cannot give either party legal advice. During divorce mediation, a mediator may provide legal information, but he/she will not give you legal advice. You may hire an attorney or other professional expert during the mediation to give you legal or expert advice on certain aspects of your agreement and still save time and money by negotiating these issues with the help of a mediator.

ARE THERE ANY OTHER ADVANTAGES TO DIVORCE MEDIATION?

While the legal outcome, termination of the marriage, is the same whether you litigate or mediate, the consequences can be vastly different. The long-lasting emotional effects of a legal battle can be devastating – especially if children are involved. The war may be over but the fight can go on and on and on over unexpected financial, child custody, timesharing, and visitation issues. This can harm children as their loyalties toward one or both parents can come into play. Children are always caught in the middle of these tug-of-wars.

The divorce process you pick is without a doubt one of the most important choices you will ever make. For it determines who has the control over outcomes you will both have to live with for years to come. In time, money, outcomes, and peace of mind, the road you take to divorce can make all the difference. In most cases, using a divorce mediator simply makes good sense.

I HAVE MORE QUESTIONS. HOW CAN I GET THEM ANSWERED?

I offer a free telephone consultation for people who are considering using my services. I will be happy to answer any other questions you may have and there is absolutely no obligation. Call me at 561.310.2141 or click the button below to schedule a convenient time for your free consultation.

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