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Choice - Divorce Mediation

Divorce cases that lead to unrestrained and extended litigation are undeniably always destructive and disastrous expenditures of family resources. It is easily estimated that discovery alone in the traditional adversarial litigated divorce can cost more than $20,000 in a fairly routine case.

Even with limited discovery, most dissolutions involving one pretrial hearing and representation through a traditional settlement process will result in fees and costs to each party in the range of $5,000 to $15,000. There most certainly has to be a better way.

It is my conviction that issues of divorce should be resolved in court only as a last resort. The drawbacks and disabilities of litigation in resolving certain issues have become so widely accepted that even a number state's legislature has codified a criticism of the current system as being "at times arbitrary, time consuming, intimidating, expensive and unnecessarily complex." If no effort is made to help parties find a more effective expeditious manner in which they can settle their disputes, their resources may be devastated by the operation of the court system.

Divorce mediation is an alternative to litigation that should be considered even before a divorce case is filed. Individuals facing a divorce need a clear explanation of the mediation process, in order to make an informed decision about this option. Therapists and counselors can offer support by becoming familiar with the divorce mediation process or suggesting a consultation with an experienced mediator.

The Legislature has declared that the policy of the law is to promote settlement, encourage cooperation between the parties and reduce the cost of litigation in family law cases. The court may order the payment of attorneys fees as sanctions by a party who does not cooperate and make good faith efforts to settle. It is an unfortunate consequence of this legislation that many cases have become battles to prove which side was the least cooperative. In such cases there is not a better example of how the process can over-shadow the real issues between the parties and their need to find a functional means of settling them.

Mediation diverts the parties from the adversarial process entirely and is truly consistent with the stated policy of the law. Mediation is an effective and preferable alternative to litigation. This article describes important features of mediation, dispels some common misconceptions and offers basic guidelines to consider when contemplating this process.

Mediation is a voluntarily, confidential and cooperative problem-solving process in which the parties to a dispute meet with an impartial and neutral facilitator who assists them in communicating their primary concerns, first to the mediator and eventually to each other. Through this process the parties work to identify issues, collect information, evaluate options and find solutions that address the concerns of both.

The parties' mutual satisfaction with the settlement increases the likelihood of their future cooperation in the execution of the agreement. This is especially valuable in regard to parenting concerns and stabilizing the future relationship of the divorcing parents.

Mediation is not a means of eliminating private attorneys from dissolutions. However, the attorney's role changes in mediation compared to the traditional adversarial process. Both parties may individually retain counsel to advise them at any time before or during mediation. The parties need to be able to discuss their rights and may also have immediate questions that can only be answered by their own attorney. Counsel may also help a party prepare for negotiations during the mediation process. Therefore, the individual parties relationship with private counsel can be an important part of the mediation process.

Mediation does not preclude gathering and evaluating the same information that would be needed to present the case in court. Rather than having each attorney work with one party to obtain relevant information, the mediation process allows the parties to promptly design and implement an integrated discovery plan. Both parties agree to voluntarily exchange information and documents. Both can sign authorizations devised to obtain information from third parties without delay. Typically, joint experts and consultants can be employed to render an unbiased analysis of the information, always subject to review of the parties' separate counsel if deemed appropriate. Just as in any dissolution matter, a good settlement can contain warranties to cover the possibilities of a failure to disclose; in the event that the parties choose to rely upon their unverified statements as a basis for settlement.

It has been argued that mediation only works with nice people who are already on friendly terms and want to remain so. To the contrary, researchers conclude that high levels of conflict do not preclude mediation and, in fact, as much divorce-specific anger between spouses exists between mediating couples as between couples in the adversarial process.

Many experienced family law judges and attorneys will attest to the fact that the worst cases of unrestrained and extended litigation have been fueled by unresolved conflict that had very little relevance to the legal or factual issues in the courtroom. Our no-fault system makes no room for the expression and release of emotions by either party.

An assessment of an individual's ability to mediate should address four basic questions. First, can the parties deal fairly with one another? Second, are the parties open to considering the process? Third, would one party tend to dominate or control the other? Fourth, would either party be unable or unwilling to deal with subjects that need to be addressed and resolved?

Fair dealing in mediation requires each participant to identify and communicate their own views, interests and needs on every issue and allow the other party to do the same. The mediator facilitates this dialogue. Fair dealing also means that each party is willing to work toward a result that will address the concerns of the other party as well as their own.

To determine if both parties are open to the process, assuming that neither party rejects the idea out of hand, they may arrange to consult with a mediator simply to explore that issue. Before any mediation begins, an experienced mediator should explain the process in detail and assess whether mediation is appropriate. Since their participation is entirely voluntary, after the first consultation both parties can discuss the process with their attorneys if they have one and make a fully informed and considered decision of whether to mediate.

One party's tendency to dominate or control the other can prevent mediation by disabling the other party's ability to participate effectively in the dialogue. The mediator has a duty to assure a balanced dialogue and must attempt to diffuse any manipulative or intimidating negotiation techniques used by either participant.

A commonly argued criticism of divorce mediation has been the concern over potential domination, manipulation and negotiating power imbalances. Many have argued that women are generally at a disadvantage in mediation because they are less able than men to represent their own interests in direct negotiations. This conclusion was tested in longitudinal studies comparing women's satisfaction with case settlements reached through mediation versus the adversarial process. Responses revealed that women in mediation were significantly more satisfied with the outcomes and did not believe that their spouses had any advantage over them.

The parties must be willing to mediate every issue that needs to be resolved. Although the parties may not actually settle every issue, one party cannot insist that any one issue may not even be open for discussion. This negotiating technique exerts control over the process and prevents the concerns of both parties from being fully discussed. Despite the lack of a settlement, permitting discussion of all issues in mediation could lead to an agreement to resolve the impasse by another form of dispute resolution.

Parties' generally have a clear intuitive sense of whether or not to mediate after hearing an explanation of the process and what is expected of them. Any initial hesitation or uncertainty about mediation should be taken very seriously and be discussed openly and fully. Although some people may choose not to mediate at one stage of the dissolution, the factors affecting the decision may change and a future reconsideration is always possible.

When mediation is offered in the earliest stages of the dissolution there may also be concerns over issues needing urgent attention, such as custody, housing or temporary support problems. The fear that mediation will not progress quickly enough to resolve these concerns must be addressed. In this context, whether mediation can be useful will depend on a mutual willingness to begin discussions quickly enough to satisfy a true need for urgent resolution. Private counsel may also file a motion for temporary relief, securing a hearing date with the court, while the parties begin mediation. Often, by the hearing date, there can be one or more mediation sessions in which interim agreements are reached, eliminating the need for an adversarial hearing.

People facing divorce want to know how to protect and secure their interest without substantial expense and litigation. When discussing these concerns, the alternative of divorce mediation has to be considered as a method of dispute resolution that can enable them to be directly involved in reaching a lasting and effective settlement of their case, while keeping the costs of the process under control.

Mediation enables the parties to be directly involved in the decision-making that forms the settlement of the issues in their dissolution. It also has the potential of creating a cooperative relationship that can reduce high conflict between the parties and especially benefit their children by relieving tension between the parents.

Considering the benefits that can result if the parties can work directly with each other to reach a fair and meaningful settlement, divorce mediation should be fully explained to all couples contemplating divorce. They need to know that there is a choice that can be made between the traditional adversarial process and the mediation process.


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Before the divorce is final, the court may issue temporary orders to deal with immediate problems, such as conservatorship, possession, child support, and spousal support/alimony. Temporary orders can say who will live in the home, who will be able to write checks on the bank accounts, and who will have control of the children up until the divorce is final and permanent orders are put in place. In most cases, depending on the court, the spouses will be ordered to mediation prior to any hearing on temporary orders. Mandatory mediation helps lessen the case load at the court and helps the parties resolve issues without a court ruling.
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