Deciding to divorce is hard, and there are many big and little choices behind the ultimate decision. But there’s one question that many don’t grapple with: how do I want to divorce? This question is often left unaddressed because many believe that they’re doomed to have a litigious divorce. When most people think about divorce, they imagine the war-like scenario so often portrayed in popular culture. In this, one party is victorious, and the other is the loser. This image often involves mudslinging and scandal. While this route is one path to divorce, it’s not the only one. Moreover, it’s often not the best way to navigate an already difficult process. Divorce mediation offers an alternative solution.
What is Mediation?
One approach that’s continuing to grow in popularity—and is typically more cost-efficient—is mediation. In mediation, the parties meet with a neutral third party who guides them through the decisions that form their separation agreement. Mediation is an interest-based approach where the parties, together with the mediator, work to understand each other’s underlying motivations. Together, they generate creative resolutions to resolve any impasse. For that reason, mediation is not focused on retribution for marital grievances; instead, it’s a future-focused process intended to set the parties up for the next chapter of their lives. And most importantly for many of my clients, mediation provides absolute control over the outcome to the parties. This is because they—not the mediator—make all final decisions.
Who Should Mediate?
I truly believe that everyone (with limited exceptions) should attempt mediation before engaging in a traditional divorce model. Mediation is intended for (and should be used by) all who desire a less combative divorce process. Mediation also allows for more control over the timeline, cost, and outcome of the process.
Ideally, parties should attempt mediation before asking for court intervention. However, mediation is flexible and can be implemented at any stage of the process.
Mediation also can be used to resolve any issues relating to the divorce or a limited set of disputes. It can also be used for one issue, like custody. Thus, even if you’ve already begun a different process, you can still mediate—it’s not too late.
It’s especially important for parties who have children to attempt mediation. As I always tell my clients, children bind you for life, and the coparenting relationship is one of the most important relationships you will have—it does not end when your child turns eighteen. You and your Ex will forever have celebrations and life events that require you both to be present (graduations, weddings, and the birth of grandchildren, to name a few) so it’s best for all involved to try to learn how to move forward and get along.
The Benefits of Divorce Mediation
In fact, even if you don’t succeed at resolving your disputes in mediation, the mere act of engaging in the process produces positive results in the long run. A 12-year study conducted by Dr. Robert Emery shows that just five hours of mediation prompted parents to settle their divorce outside of court—and had positive effects on the coparenting and parent-child relationships. In fact, after just 5 hours of mediation, non-residential parents were more likely to speak with their children on a weekly basis and see their children more frequently. Moreover, the primary residential parent “graded” the other parent more highly in every area of parenting, including discussions related to coparenting problems.
Who Should Not Mediate?
There are three factors that make mediation an unsuitable process for some people to divorce. Since you are probably a woman reading this blog post on SAS for Women, you’ll want to understand them.
First, mediation should not be used if there is a history of domestic abuse (including physical, emotional, verbal, cyber, or financial abuse). A truly voluntary (and thus, enforceable) agreement cannot be made under threat or fear of abuse.
Second, parties who are not willing to be open about their finances are not suited for mediation. Since mediation does not include a formal discovery process, each party must be willing to produce documents necessary to illustrate the full financial landscape. Again, this is because a truly voluntary agreement cannot be reached if one party is not privy to all relevant facts.
Finally, mediation will be unsuccessful if a party is unable or disinclined to express themselves without an advocate present.
SAS Note: So, if you feel bullied in your marriage, if you’ve not had access to the money, don’t understand how the finances worked in your marriage, and/or your husband will not/would not share financial information with you, mediation may not be right for you. This is because you are not coming to the table at the same level of power as your husband. You may need an advocate, like a lawyer.
You’ve Made the Decision to Mediate, Now What?
1. Interview Several Mediators
Do your research and speak with several divorce mediators, either independently or together with your Ex. If you are speaking with the mediator separately from your husband, understand that the mediator will not be able to discuss content with you, but can discuss the structure of mediation and answer general questions. How to choose? Remember, you will share some of the most intimate details of your life with your mediator so it’s important that you feel comfortable with them. Moreover, not all mediators are attorneys, so make sure you understand the mediator’s background and whether they’re the right fit.
SAS Note: We recommend that the mediator you hire be a licensed divorce attorney. The truth is you want someone who really understands divorce law to help you complete this document. If your mediator is not a licensed attorney, you will pay extra to have it edited by a lawyer to make sure the document is legally tight before it gets sent off to court.
2. Gather Necessary Information
Create a file of your most recent financial statements (including statements related to bank accounts, credit cards, investment accounts, and mortgages). Your mediator may request documents dating further back, but having your most recent statements will be sufficient for your first session. If you are unable to gather all of your documents, a list of assets and liabilities will often give your mediator enough background to get started.
3. Make a List of Monthly Income and Expenses
Recreate your marital monthly income and expenses based on historical data. At a minimum, these amounts should be based on an average of three months’ worth of data. Being knowledgeable about the family income and expenses will help you and your Ex have realistic conversations and expectations relating to spousal maintenance and child support.
4. Meet with a Financial Advisor or Certified Divorce Financial Analyst
If you feel unprepared to speak about finances, you should speak privately with a financial expert. This person should be experienced with understanding how your money will be impacted by the divorce. This is the case no matter what model of divorce you and your spouse choose. A Certified Divorce Financial Analyst (“CDFA”) will help you understand the marital finances and prepare you for the finance-related conversations that will occur during mediation.
5. Consult with an Attorney
At any point in the mediation process, you can consult with OR retain independent counsel. This helps ensure that any tentative agreements you’ve made or are considering make financial and practical sense for you long term.
This attorney will help you understand your rights and obligations under the law, before or during mediation. The attorney can even review the proposed separation agreement on your behalf. You should note, though, that not all attorneys favor the mediation process; it’s important to retain an attorney who is committed to your goal of succeeding in mediation. On the upside, more and more attorneys are willing to frame their mediation services as “unbundled services,” which are different than the traditional divorce retainer.
6. Adapt the Healthy Frame of Mind
There is no winning when it comes to divorce–even if you go to court. The sooner everyone comes to understand this, the better. When coming to mediation, be prepared to compromise and to come to an agreement. To help you do this, you’ll need to set aside your personal feelings. You’ll need to prepare to go to the “mind side of the wall” and prepare to work rationally. Your spouse may need to be reminded of this too.
Because making the decision to pursue a divorce is so challenging, it’s easy to forget that you have choices. For an increasing number of people, mediation offers a better path forward than traditional divorce models. As such, mediation has helped many families begin the next stage of their lives.
Bryana founded Turner Divorce Mediation, P.C. after seeing firsthand the detrimental effects that litigation can have on a divorcing couple and their children. Through her mediation practice, she provides clients with a friendlier approach to divorce so that they are better equipped for a positive future. If you have any questions or would like to learn more about mediation, you are invited to email Bryana or you can visit her website.
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