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Mediate - Don’t Litigate
When a relationship is in conflict, trust is the first thing to go. A decision to divorce or separate is often made by one person in the relationship without a lot of discussion or agreement with the other. Even when the decision is a joint one, the period of time from when the word divorce or separation is spoken to making the choice of how to proceed can be a no-man's land of indecision and panic. In this vacuum, anxiety and fear have ample room to take over. Neither person knows what the other is really thinking or about to do. Is my spouse going to move money around, empty bank accounts, or hide assets? How will I support myself and the kids? Can I keep the house? How do I protect myself? How can we afford this?
Things Can Escalate
These are normal reactions to the inevitable stress of an impending separation or divorce. Many couples are able to calm their fears and proceed to work things out. Others take unilateral action. They hire the best lawyer they can (or can't) afford. They get restraining orders from the court. They take half - or all - of the cash out of the bank. The cycle has begun.
Each one thinks that he or she is acting defensively to protect their interests, but these actions are always perceived as aggressive by the other spouse, who responds by defending him or herself. The spiral starts: a series of escalating moves that intensify the conflict and erode what little trust remains. Friends and relatives will urge you to protect yourself, assert your rights, and hire a tough lawyer! Once that occurs, you have made the most important decision you can make. You have turned your conflict over to other hands. It will take a long time before things get calmed down.
Even when a couple is talking and trying to handle things civilly for themselves and the kids, it is impossible not to feel anxiety and fear for the future. The ending of a relationship is often a sad and angry business, and the future outside of the relationship is unknown and scary.
Ninety to ninety-five percent of divorce cases are settled before they go to trial. But litigation has a life of its own, and cases follow certain patterns before they reach the negotiation stage: attorney/client consultations, discovery, depositions, expert witnesses, appraisals, hearings, telephone conferences, settlement proposals... the list goes on, and so do the bills.
What is Mediation?
Mediation is a process in which a skilled, neutral mediator works with the parties, using a step-by-step approach, to gather information, educate the clients, analyze the data, generate options, and, once all the parties are fully informed, negotiate a fair and informed settlement. The parties are given information along the way about their specific issues, and where there are further questions, the couple is encouraged to get independent advice from attorneys, accountants, custody evaluators, psychologists or other professionals. Mediation does not eliminate the right to have an attorney advise you of the best options to protect your interests; rather, it works in conjunction with attorneys to allow individuals to collaboratively negotiate an agreement for themselves. Mediation can help you work out property settlements, child support, spousal support or alimony, as well as custody and parenting time plans.
You Save Money
Even if both parties have retained legal counsel, the cost of settling through mediation is substantially less than settling through attorneys. Rather than paying these highly skilled professionals full-time, mediation allows you to use them selectively and where appropriate to ensure that you're getting the information and advice you need. Once you reach agreement on all issues, a contract known as a dissolution judgment will be filed with the court. This contract lists and divides your property and financial obligations, establishes custody, parenting time, child support, and spousal support or alimony. Even if you can't reach agreement on everything, many issues can be resolved in mediation, limiting the issues that might need to be litigated.
You're in Control
Mediation allows people who have a disagreement - and who may even be in high conflict with each other - to resolve their differences in a way that is fair to all, consistent with state law, and meets the interests of each of them. It also helps parties focus on the future, and where children are involved, on a new relationship as parents. The outcome of the mediation is in the hands of the parties because they control the result.
Mediation is private and confidential. If mediation fails, the parties can turn their dispute over to a judge or an arbitrator to make a decision for them. But when the parties are able to work with a mediator to settle their issues, they are more likely to tailor a result that meets their particular circumstances. And when children are involved, mediation promotes the conflict resolution skills that enable the parties to put their "marital argument" behind them and cooperate in the task of parenting after divorce.
The Oregon court grants a no-fault divorce, or one person can allege fault to end the marriage. A couple must either agree to the reason for the divorce, such as the marriage has irretrievably broken down due to irreconcilable differences, or prove to the court that the divorce should be granted because one party was under-age or lacked the mental capacity to understand marriage, or consent was obtained either by force or fraud.
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