Going through a divorce is difficult for everyone involved. A divorce proceeding often creates serious emotional and financial problems for one or both parties and frequently leads to feelings of anger, sadness and worry. So, what is mediation and how can it help? Couples going through a divorce meet with a neutral professional called a mediator. A mediator does not represent either party in a divorce and does not provide legal advice, but a mediator can help divorcing couples resolve disputes they may have concerning such things as a division of marital assets and child custody arrangements. A mediator does not have the power to make decisions like a judge but can be very helpful in facilitating discussions that lead to a settlement agreement that eliminates the necessity of an emotionally draining and costly trial. In fact, part of an effective mediator's job is to reduce some of the emotion from the divorce process that can cloud a person's judgment and help the parties view the facts of their case more objectively, just as a judge who hears your case would. Mediation is especially important in domestic relations cases involving minor children, since those cases tend to be far more emotional and, unlike other types of civil litigation where the parties to a lawsuit may never see each other again after the case has ended, parents with minor children will have ongoing contact with each other for years afterward. Many individuals initially express doubt about whether mediation can be successful in their cases. People often tell their mediator something like: “mediation may work for some people, but there is NO WAY it will work for me. We can’t agree on anything!” Despite those initial predictions, mediation is successful more often than not. Mediators are trained professionals who can make creative suggestions and help the parties “think outside of the box” to come up with practicable solutions that can work for everyone. Below are some of the more important benefits of mediation in divorce cases.
Mediation reduces anxiety, stress and the uncertainty of trial.
Trials are, by their nature, adversarial and stressful for everyone involved. A trial escalates conflict and heightens tensions. During divorce proceedings lawyers for each spouse will typically attempt to introduce evidence that places the other spouse in an unfavorable light, hoping to gain some slight advantage for his or her client. Generally, a public trial exposes the faults of both parties and neither comes out of a trial looking especially good. Moreover, a trial tends to exacerbate feelings of animosity between a couple seeking a divorce. Once hateful words have been spoken and an individual's mistakes or lapses in judgment are presented to a judge in open court, any hope of the parties being able to successfully communicate with one another in the future is greatly diminished. It's simply unrealistic to expect a spouse who believes that he or she has been unfairly attacked during a divorce proceeding to simply "forgive and forget" after a trial has concluded.
Mediation gives parties more control over major decisions that affect their lives.
Mediation is your opportunity to have some direct input into such things as how your marital property will be divided, how debts will be paid and the specific times you will see your children. That is not to say that you will get everything you want in a negotiated settlement with your spouse. But you should also realize that you are also unlikely to get everything you want after a trial either. Rarely, if ever, does a judge grant a person everything that he or she has requested. It's not unusual for a party reading a judge's final divorce judgment after a trial to express surprise and disappointment when reading a judge's decision. After all, from their prospective the "facts" were so obvious, and the only "fair" thing is for them to have prevailed on a particular issue. Honestly, it is very difficult for most people to be completely objective in evaluating the merits of their own divorce case. It's simply human nature for us all to view life events from our own subjective viewpoints. More often than not, there is a tendency to exaggerate the shortcomings and faults of a spouse, while minimizing or rationalizing our own failings and mistakes. Parties to a divorce should also understand that it is difficult for a judge to fully appreciate all of the nuances of a couple's marriage after merely listening to a few hours of testimony. Judges do the best they can to be fair to everyone, but a judge doesn't become infallible when he or she puts on a black robe.
A successful mediation helps make the lives of your children less stressful.
It should come as no surprise that a divorce can be very upsetting for minor children. But most recent studies have shown that it is the ongoing conflict between parents that is most upsetting to their children rather than merely the divorce itself. It is clear that conflict between parents can have a serious long-term impact on the emotional wellbeing of your children. The more serious the conflict, the more harm that conflict will cause your children. An individual will sometimes even express a desire to use a divorce proceeding as a way to embarrass or anger their spouse. Using the court system to seek revenge for the transgressions of a spouse doesn't bring any long-lasting satisfaction and it is the parties' minor children who frequently suffer the consequences. While unintended, it the children of the parties who often become collateral damage in an ongoing battle between their parents.
Rarely is a prolonged legal battle best for children. In cases where a minor child's health or welfare may be endangered by the conduct of a parent, the court will normally appoint a lawyer called guardian ad litem (GAL) to represent the interest of a minor child. A GAL is free from the emotional baggage that sometimes can have an impact on the judgment of parties who are going through a fiercely contested divorce. A GAL's only interest is arriving at a resolution that will ultimately be best for the minor child he or she is representing. Any potential concerns a parent may have regarding a minor child should be relayed to the GAL, who can make an independent assessment and then file any motions he or she believes are necessary to keep a minor child safe.
When parties have minor children together, there is sure to be ongoing contact between them for many, many years after a divorce is final. In fact, after children are born the connection between a couple is never truly severed. Divorced couples will continue to see each other at their child's sporting events, school activities and during exchanges of their child. Ideally, if problems arise that involve their child, divorced parents will be able to have civil discussions with one another to resolve those problems together. Even much later, after their children are grown, the parents will continue to interact with one another at weddings, births of grandchildren and will likely see one another at their grandchildren's events.
All of the interactions between parents after a divorce are potential opportunities for conflict and can be very stressful for your children. How future contact between you and a former spouse will look depends to a great extent on decisions made at the time of an initial divorce proceeding. A person may not like his or her former spouse but being able to interact civilly with one another in public and private settings will be of tremendous benefit to all concerned, especially to your children. A successful mediation helps parents to begin a new chapter in their lives on a note of cooperation that can hopefully continue far into the future.
Mediation reduces the likelihood of the parties returning to court.
For the majority of couples, getting a final judgment of divorce ends their involvement with the court system for good. But for a substantial number of others, the entry of a final divorce judgment marks only the beginning of many years of long and difficult court battles. This is especially true when a case is not settled, and a trial is required for a judge to decide important family issues. The contentious nature of a trial often leaves both parties even more angry and upset with their former spouses than they were before and spoiling for round two.
Settling a divorce on terms agreeable to both parties greatly improves the chances that they will be able to communicate effectively in the future for the benefit of their children without any type of court intervention. Divorced parents that are able to avoid conflict and get along to at least some degree with one another not only improve the quality of their own lives and the lives of their children, but also make a return to court much less likely.
Mediation speeds up the divorce process.
Unfortunately, getting a case to trial is sometimes a long and involved process that can take more than a year. During that time, it is difficult for the parties to plan for their futures when so many important issues remain unresolved. Uncertainty about their futures also creates additional anxiety and stress for all family members. Being "in limbo" is especially difficult for any minor children of the parties since issues such as custodial times are left unresolved until a final judgment can be entered. Mediation can significantly speed up the entire divorce process and allow the parties to obtain closure and to start planning for their lives after a divorce.
Mediation saves money.
A litigated divorce can cost each party tens of thousands of dollars. This financial burden is made worse since couples who are going through a divorce often experience significant financial problems because of the additional costs associated with running two separate households. If both parties are willing to compromise on some financial issues, mediation can save money in the long run. When successful, mediation helps the parties financially by eliminating the high costs associated with a divorce trial.
Is it necessary to have a lawyer for my mediation?
There is no requirement that a party be represented by a lawyer during mediation, but it is generally best to have the benefit of legal advice when attending a mediation, especially if your spouse has hired a lawyer. A lawyer can help his or her client better understand the law as it applies to a divorce case. Of course, it is not the job of a lawyer to simply agree with everything a client says he or she wants during a mediation. An experienced lawyer understands the law and recognizes which client goals can likely be achieved and which goals are unrealistic. Sometimes, a client may even become upset with his or her lawyer when informed that a particular outcome is not attainable or is very unlikely. Informing a client that a desired result is not likely to be obtained at trial does not mean that a lawyer is not representing his or her client effectively. In fact, a lawyer that simply ignores the law and tells his or her client what the client wants to hear does a grave disservice to the client. Such reassurances create a false sense of optimism and makes settlement very unlikely since the opposing lawyer will likely be advising his or her client not to accept an offer that is inconsistent with the law. If you have hired the services of a lawyer, you have presumably done so because you do not fully understand the intricacies of the legal system and need someone to help you navigate the process and reach a satisfactory conclusion that is as favorable to you as possible given the particular facts of your case. Getting good advice from a lawyer, even if it's not pleasant to hear, can save you a lot of stress and disappointment later.
Is mediation appropriate when there has been domestic violence?
Even when there has been domestic violence in a relationship, mediation is still a viable option for couples going through a divorce. Some mediators have received additional training to mediate cases where there are allegations of abuse. Special precautions are taken in such cases to make sure that the mediation is conducted in such a way that all parties voices are heard. Intimidation and threats will not be tolerated. In many mediations, parties will be placed in separate rooms so that there is little or no direct interaction between the parties. Offers and counteroffers are relayed to each party and their lawyers by a mediator until a consensus is reached on a particular issue. This practice is especially helpful in cases where domestic violence has been alleged and a party may not feel comfortable being in the same room with their spouse.
Conclusion
Hopefully, your experience with mediation will be a positive one. A trial is an important right that each person possesses, and in some situations a trial may be necessary. But the adversarial nature of trials can also create some serious and often unforeseen problems for families. After almost seventeen years on the bench, I have presided over hundreds of domestic relations cases and have witnessed the effects of the litigation process firsthand. I truly believe that mediation gives you and your family the very best option for a better resolution of your domestic relations case as you prepare for a new chapter in your life.
Sincerely,
Greg Nicholas
Presiding Circuit Judge
32nd Judicial Circuit