Everyone knows the typical approach -- "I'll hire an attorney for me; you hire an attorney for you; the chips will fall where they may; and maybe we'll talk when it's all over." With mediation, however, the approach sounds like this - "Let's talk together, with the help of a divorce mediator, and see how we can settle things in a way that we (and our children) can best survive in this new phase in our lives."
So, what is divorce mediation?
Simply put, it's a process in which a divorcing couple meets, together, with a mediator (or, in some cases, two co-mediators) in a series of scheduled sessions. During those session, the couple discloses the "hard facts"; that is, information regarding their joint and individual finances (bank accounts, debts, investments, retirement accounts and pensions) and assets (real estate, cars, other vehicles). They also discuss the "soft" yet crucial, facts -- things like family background and history; fears and concerns; issues regarding children, and other non-financial matters.
With all of the "facts" on the table, the mediator helps the parties identify a range of possible solutions. Each of those solutions considers the fact that there are two parties (and children) who need to survive after the divorce.
The next step, (call it the "solutions phase"), is the cornerstone of mediation and what sets it apart from the traditional, two-attorney approach. In the solutions phase of the mediation, the spouses speak directly to each other about the various options and whether or how those options do or do not meet their concerns. If the couple doesn't need any help with this discussion, the mediator keeps quiet. If the couple becomes stumped, if tempers or negative emotions flare, or if the couple just needs some prodding, the mediator chimes in. The key is that the couple is encouraged to do most of the talking and problem-solving. The mediator is there to help identify options, keep discussions on track, minimize unproductive or hostile discussion, and, generally, to create and maintain forward-moving momentum to the process.
So, mediation puts the control over decisions in the hands of the people best equipped to make those decisions - the husband and wife who are going to have to live with those decisions. Doesn't that just make sense? After all, people govern their own lives during their marriage. Shouldn't they have the greatest direct say over issues that will influence their lives after the marriage?
In addition to keeping control where it belongs, mediation helps clients to resolve issues faster, freeing them to move on with the rest of their lives. There are a number of reasons why, by and large, couples who mediate their divorces spend far less time getting divorced than do couples using the traditional, two-attorney approach. First, the couples, and the mediator alike, are all committed to reaching agreements. They see the value of not having the divorce process itself become a way of life. They want to do what they have to to resolve their issues, and then dedicate their energies to healing and moving on with the new lives ahead. Although agreements may not be reached overnight, the common goal helps to keep the parties moving.
Another factor that shortens the process is that mediation centers on regularly-scheduled meetings with agendas and goals. Couples know what they're working on and know when they're going to be called on to discuss certain issues. There's a clear progression.
Mediation also typically saves couples a significant amount of money in divorce-related costs. Some of that's simple math. Couples pay just one mediator, and can share that cost. They're not paying two separate attorneys to do two separate jobs of soup-to-nuts representation on all issues. Some mediation clients, however, do hire attorneys for more limited representation, or simply for advice, along the mediation route.
The other cost saving is in the fact that, because the number of months spent in mediation (that is, paying a professional to help with the divorce) can be dramatically less than the amount of time spent in the two-attorney approach.
Some questions that people ask about the process are:
What happens when we reach agreement?
During the course of the mediation, or, in some cases, when the mediation is completed, a detailed written divorce agreement is drafted. It's that written agreement, when finalized and signed, that becomes the cornerstone of the divorce. It's what the judge will review in court, and it becomes "the law" between the parties after the divorce. After the hearing, at which the parties appear and the judge reviews the written agreement, the divorce is final. It's legal, and it's binding, just as it would be if the parties had reached an agreement by hiring separate attorneys to represent each of them.
Is a mediated divorce "legal" and binding?
Yes. Whether you reach a divorce agreement through the two-attorney litigation approach, or through mediation, all divorces become "legal" and binding when the case goes to court. In all successfully mediated cases, the court appearance is a relatively simple "uncontested hearing" in which the couple presents its agreement to the judge and asks the judge to accept it. At the end of the hearing, you're divorce, and your agreement is binding.
Can we mediate if we really don't get along?
Yes. Mediation is not limited to couples who are "still friends" and agree on most issues. A fair number of mediation clients really don't get along and can't productively discuss their issues (or even agree on what day it is) . . . without help. With the help of a neutral third-party, however, communications often open up, misunderstandings can get cleared up, and both parties are encouraged to move forward toward solutions rather than trying to solve or avenge the wrongs that brought them to the divorce table in the first place.
A key aspect to getting through tough or high-conflict cases is the mediator's unique advantage. He or she gets to work with both parties, face-to-face, at the same time. In the divorce process, where emotions run high and fears, family histories, and so many intangibles are at play, having a professional "witness" helps in ways that are both obvious and subtle. First, the mediator witnesses what a party says, making it difficult for parties to deny what they have said or swear by something they haven't. Mediators also cut short the repetitive, historical rehashes that, left unchecked, can keep the couple from moving forward at all. Instead, the mediator seeks to redirect the conversation to the issues that the parties can, and need to, solve.
On a more subtle level, the mediator witnesses the parties interactions, body language, and expressions and can use those hints to help decipher where the parities really are. Finally, and on a very simple level, the mediator is also an interpreter. That is, when glasses are half-empty (if not bone-dry), and couples are assuming the worst in each other, they may not be able to hear positive things that their spouse says. They may twist a good thing to bad. They may even hear "no" when someone has clearly said "yes". Having a third party repeat the actual words, or take away an unintended negative spin, is an easy way to reduce arguments, distrust, and hurt feelings.
When do we start the mediation process?
Most couples meet with a mediator before filing the divorce complaint - the first "official" step in the divorce process. The mediator can then explain the entire process to the parties and help them decide when to start the official process. But, couples can enter mediation at any time, before or after the papers are filed.