“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.” – Abraham Lincoln
Mediation is THE solution to eliminating high conflict and financially draining litigation and allows couples to end their marriage in a mutually beneficial and fiscally sensible manner. I know you are considering or have wisely committed to divorce mediation for your separation and divorce, for which you should be commended. In divorce mediation, parties voluntarily commit to ending their union while remaining dedicated to the following principles: concern for the children, truth and transparency, good faith negotiating and equitable asset division. What most people don’t realize is – mediation can be accomplished in a number of ways, including: working with one neutral mediator, individual mediation sessions, in a team setting or with your own attorneys present at the sessions. Parties should be aware of all of the tools and options available in mediation before going through adversarial litigation, wasting valuable family assets and enduring a long drawn out legal battle.
CLASSIC DIVORCE MEDIATION
Parties meet with one neutral mediator to discuss and “mediate” the matters involved in separation and divorce and come out with a Stipulation of Settlement Agreement or Separation Agreement (the “Agreement”). The number of mediation sessions will vary from 2-6 depending on the specific circumstances. Two sessions would be sufficient for a short term marriage with no children and no asset division, while six sessions may be necessary for long term marriages, unions with minor children, if there are pensions and/or other retirement plans involved, etc. Most mediators typically have a background in law (attorneys), the mental health field (therapists, social workers, psychoanalysts, etc.) and other professional areas and are thoroughly trained to work with families and couples going through a separation and/or divorce. Attorney-Mediators are able to mediate the issues, draft Agreements, and file all necessary legal documents, while non-attorney mediators work with family law attorneys to draft the Agreement and file the documents for the parties. A single neutral Attorney-Mediator may be all a couple will need. The exception would be the always recommended separate review attorneys for the parties to retain to protect their individual interests by evaluating the Agreement prior to signing.
For middle to long term marriages, couples with children, pension(s), etc., parties may use a team scenario to help them sort out more complicated issues and financial matters, including division of substantial assets, pension matters, parenting plans and arrangements, child support and maintenance calculations, college costs, health and life insurance, etc. Team mediation still starts out with a single neutral mediator who may enlist the help of other professionals depending on the circumstances, such as divorce financial advisors, pension specialists, real estate professionals, business evaluators, and therapists. This is how mediation is able to provide the same safeguards, safety nets and protections as a litigated matter, without the same high cost and conflict. The team of professionals will vary based on the situation and the needs of the parties involved and may only end up being the mediator and one other professional (plus review attorneys).
Some couples may not be able to sit in the same room and discuss the issues involved in a divorce without lashing out at one another or on the other end of the scale, with one party not participating in the presence of the other party. Emotions run high in divorce and conflict or non-participation during sessions does not allow for significant progress to be made in mediation. In these situations, a mediator can continue to work with the couple but meet with only one party at a time. The cost may be a little higher than regular mediation because you will have twice as many sessions, but the mediator is able to accomplish more in a shorter time period because there is no struggle or interruptions during the session. This is the preferred method of mediation for couples who cannot communicate with one another successfully, without going through costly litigation in the court system.
In collaborative mediation, there is one neutral mediator and each party has their own collaboratively trained attorney who represents and advises their client individually during the mediation. Parties are each represented during the entire mediation, and not just with a review attorney at the end of the process. If you take this route, you cannot use your collaborative attorney as your trial attorney if you eventually decide to go through with litigation. You would have to start over with a new attorney. This is required for many reasons but primarily so that the attorneys and the clients are invested in making the collaborative process work. Collaborative Mediation is more expensive than regular mediation but still costs a lot less than a traditional litigated divorce.
Divorce coaches help couples and individuals go through divorce amicably, helping each party individually or together. A coach will help couples or individuals navigate the murky waters of divorce, continue their personal and professional lives, keep the children in a happy and stable environment and help families to live amicably and in peace despite their new circumstances.