Should I stay married for the sake of the children?
Is mediation appropriate if we can’t even talk with each other?
Does it matter who is the plaintiff and who is the defendant?
What is the role of the divorce mediator?
What are the responsibilities of the divorcing parties?
How important is the mediator’s professional background?
Should I have my own attorney?
Should I see a therapist?
Can someone accompany me at mediation sessions?
Will the mediator communicate with each of us separately?
Is divorce mediation confidential?
Is divorce mediation binding?
What if we cannot reach an agreement in mediation?
How long does mediation take?
How much does mediation cost?
Is litigation ever preferred over mediation?
Who prepares the court papers and agreement?


Should I stay married for the sake of the children?

Although divorce can be difficult for children, enduring the stress of their parents’ bad marriage is usually even more damaging for children. Staying in a bad marriage compromises your ability to parent effectively because you sacrifice your own health, happiness, and self-respect. Also, an unhappy marriage fails to provide your children with an example of what a healthy relationship should be. By deciding to mediate your divorce, you are demonstrating to your children how to take control of your life and how to resolve conflict in a respectful manner. The key to minimizing the negative effects of divorce on children is for you to co-parent effectively and not put the children “in the middle.” Unless your finances absolutely prohibit you from getting divorced, it is rarely a good idea to stay together “for the sake of the children.”

Is mediation appropriate if we can’t even talk with each other?

With both litigation and collaborative divorce, each of you has an attorney to speak for you, thus further limiting your ability to communicate with each other and express your needs and concerns. On the other hand, an experienced mediator–especially one who also has a professional mental health background–will enable you to listen to each other and to communicate openly and respectfully so that the two of you can work together to reach an agreement that both of you feel is fair and reasonable. These communication skills learned in mediation will also help you to effectively co-parent your children after the divorce has been finalized.

Does it matter who is the plaintiff and who is the defendant?

Because mediation is a cooperative, non-adversarial process, there is no tactical advantage to being either the plaintiff or the defendant, as long as both parties are committed to proceeding with the process. Therefore, it is primarily a matter of personal preference as opposed to a legal issue: some people don’t want to be seen as the “aggressor” (the plaintiff), and some people don’t want to be perceived as the party who was at fault (the defendant).

What is the role of the divorce mediator?

The mediator serves as an impartial third party who guides but does not control the process; who provides a safe environment that promotes cooperation, discussion and compromise; who educates and informs without imposing decisions; and who facilitates creative problem-solving in order to reflect the couple’s unique circumstances.

What are the responsibilities of the divorcing parties?

Each of you must be willing to: (1) listen with an open mind to what your partner has to say, without judging, interrupting or criticizing; (2) clearly state your needs, interests and feelings in a respectful and non-aggressive manner; (3) provide any information, including financial, that is requested and appropriate to complete the divorce process; and (4) be willing to compromise in order to reach a mutually-acceptable agreement. While this may sound difficult to do, mediation focuses on solutions rather than on problems, on compromise rather than on conquest.

How important is the mediator’s professional background?

Divorce involves legal, financial and emotional issues. A mediator who is an attorney experienced in family law matters can help you identify and resolve the specific legal issues that must be addressed, while also preparing all of the paperwork required by the court, including the settlement agreement. A mediator who is an accountant can help identify and resolve financial and tax issues which need to be addressed in order to reach a fair financial settlement. A mediator who is a therapist can help you to focus on the goals of mediation while allowing each of you to respectfully and constructively express your feelings and concerns. Unless your mediator possesses all three of these skills and experience, the impartiality of the mediation process can be compromised (by involving other professionals); the mediation process may be delayed; and the cost of mediation will increase significantly.

Should I have my own attorney?

If your mediator is also an attorney, you do not need your own separate attorney. Having separate attorneys not only greatly increases the costs and complexity of the mediation process, but it also creates an adversarial atmosphere that undermines the cooperative and respectful nature of mediation. That said, if you wish to have an attorney review the agreement prior to your signing it, you are free to do so if that gives you additional peace of mind.

Should I see a therapist?

Even if you mediate, divorce can still be a very emotional and traumatic event. A therapist can help you understand and deal with your feelings so that you can complete the mediation process as positively and confidently as possible. Therapy will also help you to understand why your marriage failed, and what you might be able to change in order to make your future–and that of your children–happier and healthier.

Can someone accompany me at mediation sessions?

A fundamental rule of mediation is that you and your spouse control the process. Therefore, including another party (other than the mediator) upsets the balance between the two of you, and creates an antagonistic atmosphere. Even if the other party sits in the waiting room while the two of you are in session, their mere presence in the background can be very disruptive. If you would like additional support and encouragement, look to others either before or after the mediation sessions, but not during them. Just carefully consider advice from highly biased or bitter individuals. There is no need for third parties, because the mediation process itself will provide you with a safe setting in which you will be on equal footing with your spouse.

Will the mediator communicate with each of us separately?

Another fundamental rule of mediation is that the mediator is impartial. Therefore, the mediator will not  meet or speak with either of you separately except: (1)  when the communication is to address purely procedural or administrative issues that will not compromise the mediator’s impartiality, or (2) when the communication is to facilitate having either of you express concerns or issues that you are afraid to raise yourself in a session. However, in this situation, the mediator will fully share this communication with the other party as soon as possible, but at a time and in a manner that the mediator feels will best facilitate the mediation process.

Is divorce mediation confidential?

Unlike litigation where much of the process is conducted in a public courtroom for anyone to hear, mediation is completely confidential. Therefore, all communications (both verbal and written), the mediator’s notes, and any materials prepared for or presented during the mediation process, are strictly confidential, and cannot be disclosed to anyone else unless both parties agree to disclose the information.

Is divorce mediation binding?

Either party is free to terminate mediation at any time; therefore, mediation is not binding until both parties have signed the formal settlement agreement and it has been accepted by the court. Thereafter, the mediated agreement becomes a court order, and can be legally enforced by either party.

What if we cannot reach an agreement in mediation?

If you cannot agree on a particular issue, the mediator can temporarily put it aside and address another issue. Once you have reached an agreement on other issues, you will have renewed trust in each other and your ability to work cooperatively with each other, thus making it possible to go back and resolve the original issue. You will also have had both the opportunity to gather more information about the issue, as well as time to reconsider your options. However, if all else fails, you can terminate mediation and resort to litigation, although the prospect of expensive, contentious and lengthy litigation usually renews each party’s commitment to work together.

How long does mediation take?

Whether you mediate or litigate, the law imposes a mandatory “waiting period” of 102 days from the time the initial paperwork is filed with the court until you can be granted your divorce. Because mediation is a cooperative problem-solving process, most couples are able to complete the mediation process by the end of the mandatory waiting period. However, new laws enacted in 2015 allow many couples to waive the mandatory waiting period and get divorced sooner. Unlike mediation, litigation is confrontational and involves court hearings, so litigation usually takes much longer than mediation.

How much does mediation cost?

There are several variables that determine the cost of mediation, including the complexity of the case (minor children, a house, etc. increase the work required) as well as the willingness of the parties to cooperate and compromise. If the mediator is not an attorney, then the parties will have to hire an attorney (in addition to the mediator) to prepare their court paperwork and the final agreement; this will greatly increase the cost of mediation (while compromising the integrity of the mediation process). Regardless of these variables, mediation is almost always substantially less expensive than litigation or collaborative divorce.

Is litigation ever preferred over mediation?

Litigation is usually the option of last resort because it often is very adversarial, expensive, time-consuming, extremely stressful, and often puts the children “in the middle,” thereby destroying any possibility of cooperative problem-solving or effective co-parenting. However, in cases of severe substance abuse, repeated dishonesty, or ongoing physical/emotional abuse, litigation sometimes may be appropriate in order to invoke the authority of the court to keep the offending party or parties in line.

Who prepares the court papers and agreement?

As long as the mediator is also an attorney, then the mediator will prepare both the formal paperwork for court as well as the final settlement agreement. If the mediator is not an attorney, then you will have to hire an “outside” attorney to prepare the documents and agreement based on the mediator’s notes. This adds significantly to the cost of the mediation; can create issues of trust, impartiality, and accuracy; and usually prolongs the mediation process.

 

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