Divorce, while never easy, does not have to be an acrimonious ordeal. For couples who wish to amicably end their marriages, there are a number of processes available that do not involve a combative mindset and are designed to minimize conflict in favor of compromise. One of the most common processes that aim for a more cooperative dissolution of a marriage is mediation.
Mediation is a non-adversarial divorce process wherein a couple meets with a neutral third party, a mediator, usually an attorney and one with family law experience to discuss the division of assets, custody issues, alimony, and any and all other issues that need to be settled in the course of a divorce. The mediator listens to the issues presented by both sides with the goal of helping the couple reach an agreement that will be incorporated into a judgment of divorce.
How, then, does a divorcing couple choose between litigation and mediation when seeking to end their marriage? While every couple and family’s situation is unique, if your working relationship with your spouse is civil and your separation truly is amicable, mediation may be the best option for you.
A factor which favors mediation is that the cost of mediation may be divided between the parties and the overall cost usually tends to be lower than litigation. In addition, the parties have more control over the scheduling of sessions and the total time frame of the divorce. Mediation is intended to reduce conflict by encouraging the frank, constructive and civil expression of each parties’ perspective on the various issues that arise in a divorce during the negotiation process. The parties may also hire their own attorneys to review the work product or proposed agreement being considered in mediation. If an attorney is hired by a party, the attorney’s role is to advocate for that party’s best interests. Again, the role of the mediator, in contrast, is to act as a neutral third party. Therefore, it is beneficial to consider hiring a mediator who is also an experienced family law litigator. A mediator with such qualifications is not only a credible sounding board on how the Court would handle the issues presented by the parties, they are experts in crafting specific language in an agreement that addresses the particular and unique issues presented by the parties.
Each party needs to be realistic about the state of the working relationship with their spouse. Factors such as communication, civility and the ability to be able to work together are imperative when considering mediation. In cases of spousal abuse, or when mental illness and addiction are factors in the divorce, it may be best not to meet directly with your spouse, even with a mediator present. In difficult situations like these, litigation would be a better option and it may be best to have lawyers and the courts as intermediaries for your own peace of mind. In other situations, the parties may agree on all or nearly all issues. In these types of situations one lawyer may be able to simply act as a scribe and prepare all the documentation for a joint petition for divorce with an agreement. This would be the least expensive option. However, if only one lawyer is used for this purpose, they could only represent one party. The other party would have to be confident about their understanding of the terms of the agreement in proceeding with this option. Mediators who are family law attorneys may also present an agreement for Court approval acting as a friend of the Court and not formally represent either party.
Call our office today to discuss if your family situation would best be served by mediation or another process.