Getting divorced is one of the most stressful times in a person’s life. Emotional issues such as custodial time with the children and who is at fault become inextricably bound with the financial issues of support and equitable distribution. There are many choices to be made at a time when perhaps you can’t even think straight. One of those choices is whether to start legal proceedings in court and advance through litigation or try to settle the issues through mediation.
Divorce mediation is a process whereby the husband and wife attempt to reach a resolution of the issues involved in their case (outside of an adversarial process) with the help of a neutral third party. Many times the mediator is an attorney but his/her role is not to give legal advice but to facilitate discussions and explore options with the parties. It is the parties who come to an agreement. The mediator is not a judge and is not there to enter into the dispute or take sides. The mediator’s role is the manage the conflict and maintain the process.
The first step in any mediation is to identify the issues. Most issues involved in a divorce case are financial such as child support, alimony, and equitable distribution of assets and debts. However, custody may also be an issue ripe for mediation. The parties must decide parenting time arrangements not only on a daily basis, but must also deal with holidays, vacations, education and medical issues.
In order to successfully mediate a divorce case, both parties must participate on a level playing field. Information is key to solving problems and if one party has most of the information, he/she must share that information fully and truthfully. Several sessions of a mediation may be used to gather financial information such as the value of each and every asset and debt as well as the incomes and future expenses of both parties. This information is shared and each issue is explored thoroughly with both parties offering suggestions on how best to resolve that issues. The mediator may also suggest options or alternatives for the parties’ consideration.
Each party should consult with an attorney during the mediation process to become familiar with the law and how it applies to their case. Since the mediator does not give legal advice, it is imperative for the parties to seek that advice before entering into any agreement. It is far better to obtain that advice early on, then after the process is finalized.
When all of the issues have been resolved between the parties, the mediator drafts a Memorandum of Understanding which sets forth the parties’ agreements. This document is not signed. Each party should then take it to their attorney to be reviewed and transformed into a Property Settlement Agreement.
There are several benefits to mediation as opposed to litigation. It is a non-adversarial process. The parties want to solve their problems and maintain their relationship, most often because of the children. Litigation tends to pit the parties, one against he other, with each digging in their heels and fighting to the death. Mediation is a gentler process. Further, it is private. Outside intervention is basically limited to the mediator although experts may be consulted to give advice. The mediation process will, in all likelihood, be less expensive than litigating the case and the process is faster because it is done on the parties’ time line, not the court’s.
Mediation is not right for everyone. It works best for those who recognize they have a dispute, agree on the need to resolve it, and want to actively participate in the process designed to settle their dispute.