MEDIATION AND DIVORCE
Divorce mediation is an alternative to litigating issues. In some jurisdictions, mediation is required in all family law cases. However, mediation can also be proposed by one of the parties even absent the court’s order to participate in it.
Divorce mediation involves the spouses, their legal representatives if applicable and a third party called the mediator. This person serves as a neutral who helps facilitate communication between the parties. The mediator does not have decision-making authority like a judge or arbitrator does. Instead, he or she attempts to guide the parties toward a settlement of their case. Mediation may be used to help resolve a particular issue in order to narrow the scope of litigation. Alternatively, it may be used to help resolve all issues involved in the case.
Issues to Resolve
Divorce mediation may concern a variety of issues. It may help the parties determine how to distribute their property and debts. This may involve multiple issues, such as how to divide retirement accounts and how to approach tax issues. Additionally, it may help them reach a decision concerning spousal support. It may also be used to help determine the proper amount of child support to provide. For support questions, the court will not order support if it is too far away from what the guidelines call for or if the recipient would be treated inherently unfair by the agreed-upon terms.
One of the areas where mediation can be most helpful is in the creation of a parenting plan. This document summarizes the parenting decisions and plan for the children. It may address such issues as how visitations will be allocated, how holidays will be spent, the type of religious training that the child will receive and any rules related to the home environment.
Benefits of Mediation
There are a number of benefits of mediation. Some of the most common are:
Ability to Retain Control
When the parties litigate their case, a family law judge generally decides the case. He or she only has a glimpse of the parties and
their lives. With mediation, the parties can draft an agreement that is in their family’s best interests.
Retention of Power
A mediation agreement is only valid if both parties consent to it. However, in litigation, the parties hand over their decision-making authority to the judge.
A judge is bound by the law. There tends to be little creativity in statutes. A mediation agreement is whatever the parties agree to. Therefore, they can reach creative solutions after brainstorming potential ideas. This can allow for creative parenting agreements that may be unconventional but ultimately are what is best for the family and children.
Many mediation participants find that mediation leads to enhanced communication. Through mediation, parties learn to focus on the issues and the mediator steers them back on track if they begin to squabble or get off topic. A mediator often establishes ground rules at the beginning of mediation to avoid negative communication tactics, such as arguing, name-calling and other abusive tactics.
Being able to communicate effectively is especially important when the spouses have children together and they must maintain a positive co-parenting relationship. Going through mediation often provides tools to help the parties communicate better if future issues arise. If a problem cannot be resolved between the spouses, they also have a go-to resolution in the form of additional mediation.
Individuals who help come up with the solution are sometimes more likely to follow the plan because they were part of its creation. Many mediation sessions consist of the spouses and the mediator brainstorming potential options about how to resolve certain issues or how to draft the agreement in a way that will satisfy both parties. Having this customized approach and a tailored resolution also help the parties adhere to the agreement more often than if an agreement is simply handed down by a judge.
Mediation helps reduce the expenses of litigation. When the parties go through litigation, they must usually pay their attorneys by the hour and also may have to pay court costs. Mediation helps reduce these expenses. Some parties even attend mediation without legal representation.
Cases going through mediation tend to be resolved much faster than those sitting on the court’s docket.