Everyone wants to avoid litigation and its accompanying anxieties and inconveniences. Divorcing couples are no different. Some have chosen the alternative path of mediation and have saved money and suffered less heartache. Others found mediation to be a disaster, costing them more in money and in grief in the long run. So if you and your spouse are ending your marriage but are dreading the courtroom, the following question has probably surfaced: Is divorce mediation best for me?
Mediation (or as one of my clients called it “meditation”) is working out your divorce, custody, support, or other family law issue with the help of a neutral party whose entire job is to get you to an agreement. Mediations are often done before either party talks to their “own” lawyer. It is simply you, your spouse, and the mediator. (If you already have a lawyer, then he/she should explain to you these mediation tips and traps.)
Tips
*Hire a mediator who is an attorney well-versed in family law—and preferably one who is familiar with the judges in your area. Part of a mediator’s job is to inform the parties how things would likely unfold in court. Hire somebody who knows this first-hand.
*Confirm that the mediator you hire has done mediations before. Common sense, right? Don’t bet on it. Experience is not always a given and concluding a successful mediation agreement involves more than just putting two people in a room and making sure they have shared all their financial information. You want an experienced mediator who can suggest alternative solutions to problems that might stall an agreement. Otherwise, the entire process is merely an expensive waste of time.
*Save time and money by reviewing your financial documents ahead of time. Mediators bill by the hour. Know everything you own, everything you owe, who earns how much money, and (most importantly) have documents to prove each fact before you begin mediation. California law requires full financial disclosure to complete a divorce anyway (mediated or not) so you might as well get it done ahead of time.
*Enter mediation open to new ideas but with some idea of your “bottom line.” Are you okay with your spouse keeping the vacation home if your retirement is untouched? Must you have half of everything? Do you think spousal support will be granted? What is the arrangement you think would work best for your kids? Consider all options but do not chain yourself to any one position because the mediator may suggest a solution that never occurred to you or your spouse.
Traps
Do NOT consider voluntary mediation if you are the victim in an emotionally controlling relationship. REMEMBER: the mediator is there to reach AN agreement, not a FAIR agreement. This cannot be overstated. The mediator isn’t on either party’s “side,” so if your spouse usually bullies or cajoles you into making agreements that aren’t best for you, mediation will most likely not change that. The more experienced mediators will know how to deal with this, but they cannot change the entire dynamic of the relationship—and quite frankly that is not the mediator’s job. He/she is there to tell you the law and the likely outcomes.
*Do NOT sign a mediation agreement before paying a lawyer to review it. Once you have signed the agreement you have made it final. Let an expert who is working for you provide input before it becomes official. This allows you to capitalize on the financial and time-saving benefits of mediation while still having an expert who is looking out for your best interests.
Mediation can be a great tool—cheaper and less vicious than the litigation wars of attrition some divorces become, unfortunately. But like any tool it must be operated by someone who knows how to use it properly. In this case, an experienced mediator.
“Is divorce mediation best for me?” Select the right mediator, understand the mediator’s role, gather all the financial information available to you, and the answer to that question may be yes.
