Making the decision to get divorced is undeniably difficult, especially because you know it is only the first of a million life-changing decisions you will be expected to make before it’s over. And if you have children together, it’s never really over.
A lot of couples going through divorce automatically start looking for lawyers and begin the litigation process, not knowing there are other options available.
Unfortunately, these couples often spend years of expensivetime in court getting more frustrated, anxious, and desperate as time goes on.
But getting divorced does not mean resigning yourself to this fate for the foreseeable future. There are several types of alternative dispute resolution (ADR) methods that can save on time, money, and stress.
ADR is an umbrella term for a variety of formal and semi-formal resolution techniques, often involving a neutral third party, that can be employed in place of litigation.
For divorce-related disputes, family mediation is by far the most common option.
Family mediation is a structured, interactive form of ADR whereby a neutral third party, the mediator, helps family members navigate negotiations of family conflict, often centered around divorce.
These conflicts could include how to divide assets, custody arrangements, child support agreements, etc.
The mediator will encourage communication between family members, promote understanding, and attempt to identify possible areas of compromise by bringing attention to common areas of interest.
Ultimately, the mediator will help the family find a mutually beneficial solution to their dispute and conclude by assisting them document these terms in a written agreement (usually drafted by a lawyer).
1.1. The mediator’s role
A mediator is a neutral party who will not advocate for a single side of the conflict. While mediators are impartial like a judge, they do not act as a stand in for one. Dictating the outcome is not part of the role of a mediator. The power to agree or disagree lays solely with the parties in dispute.
Instead, a mediator’s role is to find common ground between two parties and remove obstacles on the journey to resolution.
Specifically, the mediator will try to define the concerns of each party in an effort to promote communication and understanding, while searching for common ground to use as a basis for an agreeable solution.
Finally, the mediator will ensure that both sides have an equal opportunity to express their concerns so that the negotiation does not become too one-sided.
1.2. Benefits of mediation for family disputes
Decision-making power – Instead of relinquishing your decision-making power, you and the other party maintain complete control over decisions you make about your family.
Less expensive – Mediation is typically 20-50% less than litigation.
Less stress – Mediation relies on cooperation and focuses on reconciliation. This doesn’t mean that it aims to get you and your ex back together, rather it attempts to repair some of the damage to your relationship so that positive future interactions are possible. The adversarial nature of litigation makes this impossible.
Faster – Mediation takes an average of 3-6 months, which is far quicker than navigating the numerous, complex steps of litigation.
1.3. Styles of mediation
There are several styles of mediation. You and your family may find that you respond to one style better than others or that a specific style fits more with your overall goals.
Taking time to understand your options for mediation styles can help you develop clearer expectations for your mediator and the process as a whole.
Facilitative mediation – the resolution is based on collecting information and finding understanding. A facilitative mediator attempts to ask good questions, validate the perspectives of each party, and normalize the points made. However, they do not offer opinions. You can expect to have mostly joint sessions.
Evaluative mediation – this type of mediation is less focused on resolution and more focused on evaluating each case. An evaluative mediator will point out the strengths and weaknesses of each case with an emphasis on legal rights. They also describe how a judge or jury will react to the points of your case. You can expect to have mostly individual sessions.
Transformative mediation – this type of mediation is focused on transforming the relationship by empowering each party as much as possible. A transformative mediator will try to recognize and emphasize each party’s needs, interests, values, and point of view. You can expect to have mostly joint sessions so that you and the other party can use the tool of recognition to help mend your relationship.
Mediation is a fantastic option to overcome conflict for most people. And according to reports by the American Arbitration Association, 85% of mediation sessions result in settlement.
This is despite past failed attempts to find a resolution, pessimism going into the process, and/or already having spent significant time and money preparing for trial.
Mediation can overcome a lot. But it is only one choice of many. You can also mix mediation with another form of ADR to create a bespoke solution.
The only occasions when mediation may not be the right step is if there is an urgent danger, legal limitation periods apply to your situation, one or more party lacks the capacity to self-advocate, or one or more party is not emotionally ready to discuss the issues.
If one or more of these apply to your situation, it doesn’t mean that mediation is no longer an option for you. It likely just means that you need to attend to something before you can consider mediation.
Either way, take time to understand your options to increase your confidence that you have chosen the right tool for the job.
Some attorneys believe that settlement is the ultimate goal of mediation and conclude that arranging a settlement meeting renders mediation unnecessary.
But family mediation is very different from a settlement meeting, or even other forms of mediation.
In a typical settlement meeting, the parties stay in different rooms while their lawyers travel between their client’s room and a third meeting space to convey the points of each side. There is never direct contact between the parties.
During family mediation, the parties meet face-to-face, generally without their lawyers, but in the presence of a trained family mediator.
A settlement meeting may be efficient at producing a settlement, but mediation addresses the emotional aspects of the conflict, making it possible for the relationship to continue. This is important for all family conflicts but especially important when children of any age are involved.
Mediation makes it possible to focus on the following:
Communication – even if you feel like you cannot communicate with the other person, the mediator is there to help you improve understanding. Promoting understanding makes the process more constructive.
Equal time – one of the major impediments to resolving an issue is people leaving the disagreement feeling like they haven’t been heard. Not only will the mediator promote understanding of what is being said, they will give both parties equal time to share their concerns so that the conversation doesn’t become one-sided.
Exploring options – mediation recognizes the legitimate rights and needs of each party and effectively produces settlement options with the interests of both parties involved.
Children – mediation is future focused. This is a vital benefit when it comes to dealing with issues surrounding children involved in a divorce. Effective co-parenting relies on the ability to continue to communicate. Mediation helps preserve the relationship and make this possible.
Results – equal treatment for all is a major goal of the legal system. While this is admirable, it doesn’t leave room for nuance. Instead of providing “paint by numbers” resolutions, mediation allows you to create a tailored solution that works best for you and your family.
Ideally, mediation will be the first step you take when you realize you can’t resolve a family issue on your own. Mediation (and other forms of ADR) is the best way to avoid the time, cost, and stress of litigation.
But what if you’re already divorced and find yourself back in court year after year, fighting motion after motion? Have you missed out on the benefits of mediation?
The simple answer is no.
While you can’t change the time and money you’ve already spent, there are still opportunities to make things easier and change how you solve family issues moving forward.
Even if you are in the middle of litigation, it is sometimes possible to take a ‘time out’ to try mediation. Just ensure to let your lawyer know to stop taking actions that will continue to accrue cost during this time, unless it is in a consulting capacity as part of the mediation.
As mentioned above, mediation is a flexible process. Not only do you and the other party have the power to change how it looks to maximize benefits, different mediators may approach the process quite differently.
With this said, there are a few optional steps you might encounter on the journey to a successful mediation.
Pre-screening – before taking your case, many mediators (or their assistant) will schedule quick, separate meetings with you and the other party to ensure that you are in a good position to mediate and that you have realistic expectations for the process.
Initial meeting – once the mediator accepts your case they will meet with you, or your attorneys if you choose to hire them, and request a more detailed outline of the issue. After this meeting, the mediator will likely schedule the first joint session.
Collecting information – before the sessions begin, the mediator will as you to collect and provide all of the necessary information and documentation to support your case. This will give the mediator a better understanding of the broad situation, and more specifically, your perspective within it.
Separate and joint sessions – some mediators will alternate between separate and joint sessions to ensure they are always getting the information they need from both clients.
Getting the kids’ perspective – some mediators will also schedule meetings with the children to get a better idea of their needs.
Meeting with new partners – if one or both party has a new partner, the mediator may request a meeting with them as well to get a well-rounded view of the situation.
Because mediation is a flexible process, you can decide whether or not an attorney should be part of it for you.
Some people choose to have a lawyer present to advocate on their behalf during every mediation session, while others prefer to advocate for themselves.
But it is important to remember that mediators are prohibited from offering legal advice. So it may be a meaningful advantage to find an attorney you can consult with before or during the mediation process, even if you choose not to have one present with you during the discussion.
Family mediation is a structured conflict resolution process where a mediator helps two disputing parties find an agreeable solution. It is a faster, less expensive, and less stressful process than litigation.
Mediation goes far beyond settlement and focuses on the relationship, views, values, interests, emotions, and needs. Even more importantly, it focuses on these for the family members directly involved in the sessions and members of the family who are indirectly involved, such as children and new partners.
While it is a beneficial step for the vast majority of people, mediation may not be right for you if you are experiencing violence, a time sensitive legal issue, or if one party lacks the capacity to advocate for themselves.
However, even if these issues apply to your case or if you have already started litigation, it is never really too late to enjoy the benefits of mediation. You may just have to attend to another matter first or pause the litigation process, but it is still possible to take part.