Mediation
Mediation, which is used for many kinds of disputes, is a form of resolution that uses a third person — a mediator — to help parties resolve issues. The basic idea is that the parties make the decisions, and the mediator is a facilitator. The mediator's job is to clarify positions and suggest alternative and creative ways to resolve the issues. It's possible to have two people serve as co-mediators, so, for example, if each of you wants a person of your gender to be the mediator, you can hire a man and a woman to work together.
You Still Need a Lawyer
Although it's important that the mediator understands divorce law, most mediators want spouses to have their own attorneys because it's not the mediator's job to tell you about the law. When you and your spouse reach agreements in mediation, you will run them past your lawyers, who will make sure you're making informed agreements. Sometimes lawyers and experts, such as certified public accountants or appraisers, attend the mediation sessions with you. They can bring useful information that you may need to resolve your issues.
The Mediation Process
When you make an appointment with a mediator, expect to receive a detailed questionnaire to be filled out and returned to the mediator prior to the session. At the first session, the mediator will explain the process and will probably ask you to sign a contract that includes rules and an agreement to pay for the mediation. You may want to review the contract with your lawyer before agreeing to mediate.
Once you agree to mediate, the real sessions begin. You, your spouse, and the mediator will decide what issue needs to be addressed first. Suppose the top item on your agenda is how to survive financially while the divorce is going on. Your and your spouse can present your budgets and together take a look at the money available to support two households. Maybe there isn't enough money to support two households, in which case you may negotiate a way to continue to live in the same household. Or you may agree that one of you will pay the other temporary support, so each of you can live in separate locations during the divorce. If you make the agreement, you'll make the effort to make it work.
When you reach an agreement, the mediator prepares a memorandum of agreement. You will need to bring this to a lawyer, who will then prepare the necessary legal documents to complete your divorce. While one lawyer can draft the agreement, keep in mind that one lawyer cannot represent both you and your spouse, even if he says he can. To best protect your interests, you should have any final documents reviewed by a lawyer who you have retained to represent your interests.
Finding a Mediator
Every community has excellent mediators — the trick is finding them. The first step is to hire your lawyer, and then have your lawyer help you find a competent mediator. Most states have a list of certified mediators, which means the mediator has completed state-approved mediation training. Successful completion of such a course means only that. Although mediators may or may not be lawyers themselves, mediators are not licensed to practice mediation. No state has a governing body that keeps mediators toeing the line. This is why it is important for you to have your own lawyer review any final documents before you give your final consent.
Remember, it's not the mediator's job to come up with the solution to the problem. That's your job. The mediator can give you helpful information and push the parties toward a compromise, but ultimately you make the decisions.
Advantages of Mediation
Mediation has several advantages over going to court:
Mediation is voluntary and nonbinding. If you don't reach an agreement, you're free to try another avenue, such as arbitration or going to trial.
You're in charge of the process, and you make the decisions.
Mediation is usually a quick way to resolve disputes.
The process is private and mediation sessions are confidential.
In most states, you can meet with a mediator much more quickly than you can get your case heard in court.
You'll probably be able to talk to your ex-spouse after the divorce.
This is good for your mental health, your kids' mental health, and your financial health.
You're more likely to comply with an agreement of your own making.
The techniques you learn in mediation can be used to resolve disputes in the future.
If you can make it work, you'll be satisfied with the mediation process and the results. An added bonus will be the bundle of money you will save by avoiding litigation.
Some Cautionary Notes
Mediation doesn't work if one party goes into it with the wrong attitude.
Even though you may want mediation to work, it simply may not. If you're not making headway in trying to mediate a settlement, your best plan is to get on the court calendar as quickly as possible, help your lawyer present your position well, and let the judge decide.
Mediation also doesn't work when one of the parties is afraid of the other. If domestic violence has occurred in the marriage, the power imbalance is often too great to successfully mediate a settlement. The mere process of mediation can also put the victim of domestic violence in greater danger. Finally, mediation doesn't work when one of the parties hides or transfers marital assets. Of course, when any of these conditions are present, no process works very well. Then the only alternative is to go to court and give control over the decision making to a judge.
