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What is divorce mediation

Posted by attorney Michael Apicella

There are various ways to get a divorce. For instance, there's the traditional litigation route, where each side goes to court and asks a judge to decide various issues, such as custody, visitation, asset and debt division, support, etc. The typical mindset in litigation is to "win," usually meaning that one side wants to prevail over the other. Yet, that "winning" attitude, especially when children are involved, typically means everyone loses due to the fighting, stress, attorney fees, and related negative consequences.

Another option is mediation. Mediation is typically much less contentious, stressful, and costly compared to litigation. It also increases the chance of finding a resolution that both parties like, rather than having a judge, who is unfamiliar with the nuances of the case, make personal decisions for the parties. The parties also maintain more control in mediation, Finally, the process is completely confidential. Hence, the parties' personal affairs do not become of matter of public record.

An overview of divorce mediation

Mediation is designed to assist the parties in identifying issues that they need help resolving. It is also designed to foster an amicable environment where each party's views can be expressed and respected. Mediation provides a level playing field for both parties so any agreements reached will be fair. Often times, several mediation sessions are necessary to come to a settlement on all issues. The parties do not need to resolve everything in one session. The parties can attend as many sessions as needed to work through all their issues.

Once the parties reach agreements on all issues, the mediator can prepare the "Marital Settlement Agreement" and all related final paperwork. That final paperwork can then be submitted to the court either by the parties or by the mediator to establish a final judgment of dissolution.

If mediation is only partially successful in resolving some, but not all of the issues, mediation is still beneficial, as the mediator can document any partial agreements in a document called a "memorandum of agreement." The parties can use that document to establish enforceable court orders, and then seek other avenues to resolve any remaining issues.

Sometimes, parties may eventually decide to give mediation another chance after taking a breather and reevaluating. Yet, even if they don't, the mediator is prohibited at all times from representing either party individually, or acting as their joint attorney. At no time will the mediator advocate for one party over the other, take sides, or do anything to interfere with his/her neutrality.

Understanding the divorce mediation process

As for the divorce and mediation process, it typically proceeds through the following stages:

  1. Filing the Dissolution Petition. Every divorce begins with one spouse filing a Dissolution Petition with the court. The mediator can assist the parties in filing out the proper court forms to start the divorce.

  2. Financial disclosures. Next, each party must provide the other with certain financial disclosures. The mediator can provide the disclosure forms and assist the parties with filling them out properly. By law, both parties are required to produce all relevant information to the other side. If required information is not forthcoming, or if one person provides information that is misleading, incomplete, or false, mediation will usually be terminated.

  3. Parenting plan. If the parties have minor children, then as part of the mediation process they can and should establish a parenting plan. For instance, the parties should try to reach agreements about the children's primary residence (who will be the "custodial parent"), and establish a visitation schedule for the "non-custodial parent." If necessary, a child specialist can be incorporated into a mediation session to assist the parties with developing a parenting plan that is in the children's "best interests."

  4. Role of the mediator. The mediator's primary role is to facilitate the parties in reaching agreements. If the process runs into kinks, the mediator, as a neutral intermediary, will help the parties work through disputes in a way where one person doesn't dominate the other, but where both parties' interests are heard and addressed. The mediator can also provide information about the law and how it may apply in regards to the parties' circumstances.

  5. Retaining counsel. Either party may retain their own counsel to advise them throughout the mediation process. Yet, even if they don't, before signing any agreements reached in mediation, the parties should still hire their own lawyer to at least advise them on the proposed settlement terms.

  6. Final paperwork. Once agreements are reached on all issues, the mediator can help prepare all the final paperwork that needs to be filed with the court. Once filed, the marriage is terminated.

Benefits of mediation

Although the mediation process may include multiple sessions, and can take several weeks or months, the total time and money invested is usually significantly less than that required for litigation. Additionally, mediation is completely confidential. Before mediation begins, both parties typically agree not to use anything said in mediation against the other in any subsequent court proceeding. This confidentiality extends to each party's and the mediator's notes, files, etc.

Mediation also allows the informal use of experts to help reach agreements. Either party can incorporate various professionals as may be needed, for instance, an accountant to provide tax information; an appraiser to determine the value of an asset; or a child therapist to help resolve a custody issue.

Finally, mediation is voluntary. Either party may discontinue mediation at any time for any reason. However, if mediation becomes difficult, the parties should take a timeout and reconvene at another time, rather than throw in the towel for good. Sometimes issues may become difficult to deal with due to temporary tension. That does not mean the parties should abandon mediation altogether. Instead, the parties should bear in mind that they chose mediation in the first place so they could reach settlement on all issues without the cost and heartache of litigation. Hence, it is wise to be patient with the process and give it a fair chance to work.

All things considered, mediation is usually the best way to resolve a divorce as efficiently and amicably as possible.

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