Mediation is becoming a more common option for divorcing couples. In many jurisdictions, couples are required to participate in mediation before a case can proceed to court.
Research has shown that couples who resolve their divorces through mediation have a higher rate of satisfaction and compliance than couples who litigate. Mediation also tends to be far less expensive, both financially and in terms of time and emotional stress, than litigation.
Despite the advantages of mediation, it can seem overwhelming and intimidating. Understanding what to expect from mediation will help, but there are steps that each party can take to prepare to get the most from mediation sessions.
Preparing Emotionally and Psychologically
Understanding how mediation works will help divorcing spouses to feel more calm and confident. It is important to go into mediation with an open mind and the intention to resolve the issues with minimal conflict.
It may help for each party to make a list of the issues that need to be addressed in mediation and the desired outcomes. This will help the individuals to prioritize their goals and recognize areas where they are willing to compromise.
Mediation should be scheduled well in advance of any court dates or other deadlines. This will allow for several short sessions if necessary instead of trying to resolve everything in one day. The longer the mediation session, the more likely it is that the parties will become frustrated and the atmosphere will become coercive and adversarial.
Either party has the right to withdraw from mediation at any time and for any reason. Either party also has the right to ask for a break to clear their head, consult an attorney, or consider any major decisions before agreeing. It is vital that everyone stay calm throughout the mediation session(s).
It is important to understand that the mediator is not a judge and cannot make decisions for the couple. The mediator can suggest compromises and alternatives, but the parties do not have to accept anything they don't want to. The divorcing couple must also remember that if they don't reach an agreement in mediation, the case may go before a judge and they will be bound by his/her decisions.
Choosing a Mediator
Many mediators are former accountants, counselors, or attorneys. All mediators are supposed to remain objective and neutral but some are more likely to focus on a particular aspect of the issues than others. Also, some mediators can fall into the role of trying to save the marriage rather than helping the parties figure out how to dissolve it.
Each mediator will have his or her own style, but there are two main strategies. The first is to conduct open sessions between the mediator and both parties. Everyone has the same information and works together to reach an agreement. The alternative is to conduct "caucuses". Generally, everyone will start out together to lay the ground rules and establish the issues to be considered. Then the mediator will separate the parties and go back and forth making proposals and counter-offers until an agreement is reached.
Each mediation style has advantages and drawbacks, but it is important to know the mediator's preference and what to expect on the big day.
Preparing Documentation
The particular issues of each case will determine what documentation is needed during mediation. Some common items are financial documents, tax returns, pay stubs, appraisals, lists of assets, receipts for child-related expenses, records of prior child support payments, etc.
Whoever is providing documentation should bring three copies – one for each of the divorcing parties and one for the mediator.
If the divorcing couple has already begun negotiating a settlement or parenting plan, it may be a good idea to bring the working draft to use as a starting point in the mediation. Any items that have already been agreed upon should be explicitly included in the mediation agreement.
Legal Counsel
Each party may choose to have an attorney present during the mediation, to consult with an attorney during breaks or between sessions, or not to have an attorney at all. The rules vary by jurisdiction so the parties should understand the applicable guidelines and whether they have the right to appeal the mediation agreement after consulting legal counsel.
Mediation offers divorcing couples numerous advantages over litigation. Having a thorough understanding of the mediation process and the rules, preparing emotionally and psychologically, choosing the right mediator, and having all necessary documentation ready will help the couple to get the most out of their mediation experience.
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