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Mulling Over Mediation

You're separated. Your partner wants you to go to mediation to work out a separation agreement, but you have misgivings about it. If this describes you, this article was written to address your concerns.

First off, there's a roller coaster of feelings with every separation. After everything that has happened to cause your separation, you may have built up considerable distrust or suspicion of your partner. In fact, if s (he) wants something, you might immediately suspect it will negatively affect you. The person you thought you married has vanished and in their place is the unreasonable person you are dealing with now. So it's natural to question his or her suggestion now to mediate. Besides this, mediation may be unfamiliar territory to you. During stressful times most of us are loathe to try new things. With all that said, why bother to consider mediation? The answer is simple. It may be the best alternative for resolving you and your children's future.

Is your children's' welfare central to your concerns and decisions? If so, you probably have ideas about how the parenting plan should be worked out. If the two of you disagree about any parts of the plan (legally called custody and visitation), it's easy for the conflict to become heated, with each person digging further into their position. Why even try to mediate in such an atmosphere?

The reason is that a skilled mediator can cool things down and help you define the issues in solvable ways, while the litigation process frequently achieves the exact opposite. When your lawyers advocate for each side, the conflict can escalate and go on for a long, expensive time. In the end, either the 2 lawyers will negotiate a settlement for you or the judge will decide the outcome. The risk, naturally, is that it would not be the one you seek. Alternately, in mediation, you have a chance to make these critical family decisions for yourselves. The court rarely turns down negotiated settlement.

So the personal stakes are high, and it makes sense to react with caution to any proposal, whether it's about mediation, custody, finances, or parenting plans. The challenge is to make an informed decision, not a defensive one.

What are some of the most common concerns people have about mediation?

1. I'll be pushed into compromising or agreeing to something that is not in my best interests.

A professional mediator will keep you on task and help you consider many options, possibly even ones you hadn't thought about. He or she will help you search for win-win solutions, and will not pressure you to accept something you don't want. Assuming the mediation is voluntary rather than court-ordered, you can stop the process at any time and return to the adversarial process if you wish.

2. Without my own counsel there to advise me, I won't be able to manage.

There is always an opportunity, actually encouragement, to consult with counsel or other experts between sessions and to bring that knowledge to the next session. There are also hundreds of books and articles on children and divorce, legal rights, and financial matters.

The sessions will deteriorate into mudslinging and rehashing old arguments.

There will be some conflict in the mediation (otherwise you'd still be together). However, a competent mediator will not allow name-calling or abusive behavior. Blaming and counter blaming will be redirected back to the task at hand and focused on the future.

3. (S) He is so unreasonable we would never get anywhere.

As a neutral party, the mediator asks questions aimed at defining the concerns underneath the positions staked out. You may also be surprised at how civilized your partner's behavior is with the third party mediator present, compared to interactions outside the mediation room.

In summary, just because your partner wants mediation doesn't mean it will be bad for you! Ask people who have used mediation about their experience. Sit in on a divorce case in family court to get a first-hand. Consider the pros and cons objectively without being swayed by distrust and anger. Consider your own tolerance for long, drawn out conflict. Think about how a legal battle would affect your kids. Look at which method will best prepare you for future communication about parenting issues. Talk personally with potential mediators and ask lots of questions. You'll be glad you made an informed choice that is independent of any pressure you've encountered.

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