The decision to divorce is probably one of the most important — and most difficult — decisions one will make during the course of a marriage. The unknowns and avalanche of effects falling like dominoes are often too overwhelming for one person to handle: “How do I start the process? When is the best time for me to initiate the divorce? If and when I make the decision to divorce, should I litigate or mediate?” It can be mind-boggling.
As an alternative to the traditional method of divorce conducted in the courtroom, mediation offers an opportunity for a couple to mitigate their financial damages customarily associated with divorce proceedings. Litigated divorces can cost upwards of $30,000, versus the more modest $3,000-$5,000 typically spent during mediation. Moreover, mediation offers an opportunity for couples to draft a settlement agreement that matches their own family lifestyle and needs, rather than have a court impose a final judgment that may be more onerous and burdensome. Lastly, rather than litigating disputes in a hostile and stressful environment, mediation offers couples the opportunity to resolve their disputes by finding workable solutions.
So, if mediation offers so many benefits, why doesn’t everyone do it? The answer lies in some of the myths and misunderstandings of this methodology. Below are just six mediation myths and misunderstandings:
A mediator provides legal information, but not legal counsel. You are free to seek legal counsel at anytime you choose. Mediation can be done as soon as the couple has made the decision to divorce, even before the papers are filed; or mediation can be done after the divorce is underway. Mediation can also be used in situations where the parents have gone back to court after the divorce was final.
According to A Friendly Divorce’s Elinor Robin, “The reality is that there is no reason someone has to be ‘served.’ It is possible to work out all the details first, file the complete paperwork with the court, and request a hearing for an uncontested divorce.” This eliminates the embarrassment of a process server knocking on your door at work or at home, and allows you and your spouse to bypass this step.
Absolutely *not*! You and your spouse have the flexibility to execute a marital settlement agreement addressing multiple issues, while still reserving one or more that you are unable to resolve in mediation. For example, you have agreed completely on equitable distribution of your assets, have settled spousal support, timesharing and child support, but you simply can’t agree on a parenting plan. Set it aside! Proceed with your divorce, and meet with a parenting coordinator, who can help facilitate and design an agreeable plan that meets the best interest of your child’s needs.
While it may be ideal to meet face-to-face, the reality is that all or the majority of the mediation process can also be conducted separately.
Absolutely false. Your mediator is just one part of the entire team of professionals available to help you and your spouse through this process, and you should absolutely consult with professionals with expertise in particular areas, as needed. For example, can’t decide how to split the family business? An evaluation with a forensic accountant could be extremely beneficial in fairly valuing the company.
Not true! A mediator provides legal information, not legal advice. A mediator will guide you to make your own decisions based on knowledge and experience, but in the end, you will make your own decisions based on what’s best for you and your family. Many mediators will also recommend that you review your final agreement with a collaborative-minded attorney before executing and filing the final document(s).
Don’t let misinformation guide your decision-making process. Before jumping to conclusions that litigation is the only available route to get divorced, be sure to clearly and soberly consider all of your options. Divorce is a legal problem like any other legal problem. Believing the myths described above only serves to confuse and misguide you. In the words of Dr. Robin, "Buying into these myths extends the divorce process, which delays healing and rebuilding the physical, psychological, social, logistical, and financial aspects of one’s life."