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What is Mediation?
In our traditional adversarial system, each spouse hires a separate attorney to represent themselves. The lawyers then spend substantial time negotiating with each other and then additional time communicating the outcome of the negotiations to their respective clients. This adversarial approach escalates the conflict, stress and anxiety, not to mention the legal fees. If the attorney's are not successful in reaching an agreement, the issues surrounding the divorce will then be decided by a judge. This turns into litigation that delays the divorce, often times for several years. It also compromises the individuals privacy and depletes any marital assets which could be divided between the parties involved or allocated to provide for the children.
In mediation, the parties, with the help of a trained mediator, negotiate directly with each other to reach an agreement on all aspects of their separation. Couples negotiate and resolve issues such as the division of property, parenting arrangements and child support. The mediator is a neutral third party whose sole responsibility is to facilitate negotiations by identifying issues, exploring potential solutions and advising the parties of all matters that should be addressed in a final agreement. The result is a less hostile and less expensive divorce. After the parties reach an agreement, the mediator, will draft a decree embodying the terms of said agreement.
Advantages of Direct Negotiation
Direct negotiation expedites the resolution of issues and often times results in better long term communication between the parties. Many couples with children admit that participation in mediation has improved their ability to resolve on going issues concerning their children following the divorce. Additionally, children of parents who mediate adjust better to their parent's divorce.
If We Can't Get Along, How Can We Mediate?
In order for a couple to successfully mediate the terms of their divorce, they do not necessarily have to be best of friends. Marital difficulties are often accompanied by anger, distrust and a breakdown in communication between spouses. A trained and skilled mediator can diffuse negative feelings and help each party present their needs in a way that the other can hear and understand. This enables the parties to fashion an agreement that each party finds acceptable.
Is Mediation a Substitute for Having My Own Attorney?
Mediation does not eliminate the need for lawyers. Mediation simply changes the role of lawyers from adversarial negotiators to legal consultants. Throughout the mediation process, parties are encouraged to consult with their own attorney if they have questions regarding their legal rights. Parties who have not consulted with a lawyer during the process often choose to have the final agreement reviewed by their own counsel before signing it. Mediation substantially reduces legal fees by limiting the lawyer's function to reviewing the final agreement and serving as a legal consultant during the mediation process.
Is Mediation Right for Me?
Absolutely - if you are seeking to avoid a contentious, protracted and expensive divorce and you are willing to come to mediation to attempt in good faith to resolve your differences with your spouse. By agreeing to mediate, you are not relinquishing any of your legal rights and the mediation can be discontinued at any point if you, your spouse or the mediator feel that the process in unproductive. It should also be noted that complicated finances do not preclude divorce through mediation and the mediator can help the couple retain appraisers or tax advisors to assist in valuing assets and structuring the agreement.
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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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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