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Divorce Choice - Mediation

Posted by attorney Garrison Klueck

Mediation is fundamentally a very different form of divorce and originates from a different approach or consciousness. The essence of mediation is that a trained third-party neutral assists or facilitates the parties in coming to their own agreement.

Although most mediations involve some discussions of likely outcomes in court, mediation permits consideration of and adoption of solutions that would never be imposed by Judges in a court of law. The "law" is a starting point, and not an ending point, in mediation. The parties, with the help of the mediator are free and empowered to develop creative solutions to their family law problems. Solutions can be "customized" to each individual situation rather than "one size fits all."

While it is not a legal requirement that a mediator be also an attorney, a mediator who is also an experienced family law attorney, can provide the useful information of what a judge would likely do with the facts presented during the mediation negotiations. Also, an attorney/mediator is qualified to create the Marital Settlement Agreement memorializing the parties' agreement if the case settles.

The neutral mediator does not "represent" either party. The mediator's focus is helping both parties equally to achieve an agreement which settles the issues in their divorce. Parties are free to have their own attorneys with which they can consult, but this is not required. Occasionally, it is the attorneys who perform the negotiations on behalf of their clients during the mediation.

Mediation is often the least financially expensive form of divorce because very often only one (1) professional, the mediator, is being compensated by the parties. Additionally, parties often observe that mediation saves money and stress because the nature of the mediation process eliminates a lot of discovery disputes and sort of "cuts to the chase." Mediation tends to quickly focus on the true areas of dispute between the parties and attempts to rapidly resolve those areas of dispute. Mediation parties often feel "empowered" relative to litigation parties because they resolved their disputes by coming to their own agreement, rather than having the outcome imposed on them by an outsider, a judge. Additionally, a mediated solution is often preferable when the parties have reason to continue to have ongoing dealings with one another because they share children, a family business or the same circle of friends or professional colleagues.

However, mediation requires a willingness to enter into the process with good faith. Parties must be willing to freely and honestly share information about the assets and debts acquired during the marriage or the process cannot truly go forward. Additionally, some parties are bothered by the fact that they do not really have an advocate or professional that is "on their side." Also, the power balance in some relationships does not recommend the divorce for mediation. If one spouse has essentially dominated the other during the marriage, the mediator's best efforts may not be enough to permit fruitful negotiations to take place in light of the power imbalance.

Additional resources provided by the author

Alternative Dispute Resolution Services

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