“In the middle of difficulty lies opportunity.” Albert Einstein
Getting divorced is inherently a difficult process that involves conflict and differing views as to what constitutes a fair outcome. The parties have divergent interests and emotions may run high, particularly when a sexual relationship outside the marriage is involved. Yet despite these hurdles, most divorcing parties want to avoid the cost and pain involved in going to court.
Many of my clients have heard of “divorce mediation” but may not know what it is and how it works. So first, a definition. Mediation is a voluntary, non-binding process in which the parties retain a skillful, neutral third party to assist them in reaching an out-of-court settlement of their issues. Some or all of the issues in a divorce can be resolved in the mediation process, including custody of children, support, division of assets and debt, health and life insurance, etc. The divorce mediator may come from the legal profession (retired judges or experienced family law attorneys) or the mental health profession (psychologists or social workers experienced in working with separating parties). After getting a grasp of the parties’ background, the issues, and the relevant information, the mediator may recommend one or more options to the parties, but the decision-making remains in the hands of the parties.
Experienced divorce attorneys often turn to mediation as a tool to reach settlement when some issues have been resolved but the parties face an impasse on other issues. For example, the attorneys may have worked with the parties as well as outside experts to gather and analyze all of the information relevant to the case (known as the discovery phase) and to clarify the parties’ positions on each issue. But one or more issues may remain intractably divisive. The parties are dug in and rigidly committed to their positions. In this situation, bringing in a neutral mediator to work with both parties and their counsel may help the parties get over the finish line without going to court.
Some parties go directly into the mediation process. Others feel they need an advocate on their side whether their divorce issues are being negotiated or mediated, and therefore first engage their own lawyer at the outset of their case who continues to work with them regardless of which settlement process is being utilized.
If you think you might want to utilize mediation as an option in your divorce process, look for a divorce attorney who has a constructive, problem-solving approach to client representation, is skillful at reducing emotion and discord in the divorce process, and is thorough in getting your case ready for settlement through discovery of all of the relevant information and narrowing the issues.