Even if one or both spouses don’t feel ready for mediation, when they consider the financial and emotional stresses and costs of contested divorces, they may decide to give mediation a go. First, however, they should consider the state of their relationship. Mediation is most likely to succeed in all or most of the following circumstances:
- The decision for dissolution is mutual. When the decision is mutual, spouses usually can work together on a settlement more easily than they would when the decision is one-sided.
- There is no desire to reconcile. If the spouses accept the reality of permanent separation, and if neither has a strong desire to reconcile, then both probably have reached the emotional point where mediation can succeed. They need not rule out all possibility of reconciliation but must be prepared to focus on what happens if they don’t stay together.
- They want to stay on good terms. Spouses who want to remain friends can use this reason to get through difficulties in negotiating compromises during mediation.
Mediation is a frequent method of negotiating divorces. The spouses and their lawyers in some cases hire a neutral third-party mediator with whom to discuss and resolve issues. The mediator makes no decisions for the spouses but helps them decide what’s best.
Anyone considering dissolution of marriage should consider mediation as a method. Divorce Mediation works in almost every case for many reasons:
- Mediation is much less expensive than an adversarial court case.
- Most mediations end in amicable settlements of all issues.
- Mediation is confidential with no public record of its proceedings.
- Mediation allows a resolution based on what the spouses agree is fair rather than what a court decides is appropriate or expedient.
- The spouses, not the court, control the process.
- The mediation process can help the spouses avoid future conflicts by improving communications between them.
Mediation is worth a try for most spouses. Even if there is a history of domestic violence in the marriage, they should not reject mediation out of hand but consider it carefully, though they should realize that the mediator can’t order either spouse to do anything, and anyone who wants to delay can abuse the process by stalling it. Where there should be quick decisions about support, child custody, or whatever, a court may be preferable. Even in such cases, however, other issues may be amenable to mediation.
All that’s necessary for the mediation to succeed is for both spouses to be willing to negotiate and to compromise. They should not reject mediation and give up before they begin just because their views clash over particular issues. Mediation is a versatile process and many cases that seem incapable of resolution manage to reach settlements if both commit to making the process work.
The Mediation Process
The process usually starts with an interview or phone call to brief the mediator about the marriage, the family, and the issues. Then comes the first meeting where the mediator explains what to expect from the process and assures the spouses that there will be no disclosure of what goes on in any later court proceeding.
Mediation, flexible and confidential, lets spouses settle conflicts in a way that helps them work cooperatively as parents afterwards. The mediator remains neutral between them. The mediator may not advise nor advocate for either spouse. What the mediator may and should do, however, is to invite or direct attention to matters that both spouses should keep in mind about what they want to accomplish.
Lawyers in Mediation Meetings
A spouse represented by an attorney may wonder whether the attorney should attend mediation sessions. It’s best if attorneys do. This protects the client from agreeing to something they don’t fully understand. A lawyer is there because the understand the law and its implications.
After the mediator goes over the fundamentals, both spouses make short statements about their marital situation. The mediator may ask some questions to amplify or clarify what they say or may restate it to be sure everyone understands the main points accurately.
The next step is to find out where the spouses agree and where they need to come to an agreement. Once they know what they need to accomplish, they can plan with the mediator how to do it. The mediator helps them identify any information needed and if appropriate asks each of them to agree to provide certain items for needed information as soon as possible.
Negotiating an Agreement
When actual negotiations begin, the mediator may suggest dealing with simpler issues first. Quick resolutions of easier questions fosters confidence in the process and encourages compromise on more complex, difficult issues.
Negotiations are not always strictly linear, but the mediator helps them maintain direction while encouraging the spouses to express opinions and positions and to listen to each other carefully to make resolution more likely. The most important things to do to make mediation succeed are to be open to compromise and to try to understand an opposite point of view.
Understanding isn’t necessarily concurrence, but with clear understanding may come new ideas about how to resolve issues. Efforts to understand encourage reciprocal efforts and make more likely a resolution that works for both spouses after each understands what is important to the other.
To be open to compromise means not bound and determined on a particular solution. A compromise that works takes both interests into account.
Completing the Agreement
When negotiations reach a solution, either the mediator or an attorney drafts a formal agreement and sometimes a parenting schedule or plan. These documents become parts of the judgment of the court and therefore enforceable, but enforcement is rarely necessary. Parties follow and abide by mediated agreements because they are voluntary, and their terms are for that reason agreeable to all concerned. Adherence rates for a mediated divorce are actually much better than a standard court ordered divorce.
Finding a Mediator
Spouses with attorneys have no difficulty finding mediators. Their attorneys make suggestions, and most simply accept their attorney’s advice. Spouses representing themselves first should ask for recommendations from friends and associates they consider trustworthy who have been through divorces. Then there are general referral sources:
They should be sure to get referrals for divorce mediators specifically, not mediators generally. Best would be a mediator with experience in divorces as a family law attorney. Last, they need to contact the referred mediators and question them about their policies, practices, and fees until they find one with whom they feel comfortable and confident.