There is more than one way to divorce. Although the most common way is for each spouse to hire an attorney and litigate the divorce, it is not the only way. Divorcing couples may prefer to resolve their divorce issues out of court for various reasons. Keeping the matter private, reducing attorney’s fees, and minimizing stress are just a few examples.
One of the most popular out-of-court options is to resolve divorce issues through the divorce mediation process. Divorce mediation is a voluntary process. Although success is not guaranteed, the divorce mediation process is often worth considering.
Litigation vs. Mediation
In the traditional litigation route, one party files the initial petition for dissolution of marriage and that petition is served on the other party. The other party will obtain a lawyer and file an answer and, depending upon the degree of conflict in the divorce, will proceed through various pretrial processes (including discovery) and ultimately reach a settlement or have a trial where the judge makes the ultimate decision. The traditional litigation route takes time – from six months to two years – and does not move rapidly. Because this process involves more lawyer hours for both parties, it can be costly.
Mediation, however, can occur before anyone files for divorce. If two spouses decide they want to end their marriage but feel they can work together collaboratively to work out all the financial and custodial issues together, they should consider mediation. It involves less time and expense, and it likely resolves with less bitterness and controversy. Finally, it gives the spouses, rather than the court, the final say in how to structure all aspects of the divorce settlement.
How does Divorce Mediation Work?
The mediator has an initial meeting with each party. If they have already hired attorneys, the mediator may likely speak with each attorney in advance and gather documentation. For the first meeting, the mediator might meet individually with each party and with the parties together, explaining the process, and getting a sense of where each party stands on all the contested issues. The goal for the first meeting is information gathering and issue limiting – what really needs to be worked out versus what the parties have already found agreement.
In future meetings, the mediator will work with the parties to resolve contested issues. The mediator can help educate each party about the likelihood of their position winning in court and can suggest options that might satisfy both parties. Ideally, at the end of the mediation process, the spouses will have resolved all outstanding issues and can reduce it to a settlement agreement drafted by the mediator.
What Happens During a Mediation Session?
When the mediation commences, the mediator will brief the spouses regarding the ground rules and ask each spouse to tell their story to the other. Then an agenda is set, in consultation with the spouses. The agenda is a list of issues that the spouses want to discuss. Once the agenda has been set, the spouses are invited to discuss and explore options around each item on the agenda, with a goal to reach an agreement.
The spouses must keep an open mind and listen carefully to what the other spouse is saying, otherwise, conflict can escalate. It’s beneficial to be flexible when discussing options. Spouses should not get positional in their approach but think outside the box. Tit–for-tat in family law matters does not work.
It is a good idea for each spouse to consider their goals, values, needs, and plans for the future of the family as well as the needs and wants of the other spouse during the discussion.
Mediation is most successful when both spouses respectfully cooperate to reach a resolution with the facilitation of a neutral mediator.
What are the Benefits of Confidentiality in Divorce Mediation?
Mediation is a facilitative process where the two spouses in a divorce will meet with a neutral third party who facilitates the conversation between them and assists them in working together to find a mutually acceptable solution. It is also a confidential process so anything discussed in mediation can’t be used later in court. The effectiveness of mediation depends on the ability of the spouses to have a frank and open discussion. When they are assured of confidentiality, they are more likely to be more open while brainstorming options, which is an essential part of the mediation. If the spouses feel that what they say is likely to be used against them later, it will hamper the success of the mediation.
Why Does Divorce Mediation Cost Less?
Employing a mediator costs significantly less than employing a lawyer. There is a much quicker turnaround, and you’ll be paying less money over a shorter period of time compared to litigation. In most divorce cases, the spouses will agree in advance to split the cost of mediation. So, for example, if the mediator charges $400 per hour, each party will pay $200.
What are Some Tips to Ensure You Have a Successful Mediation?
1. Be Prepared
Schedule an intake with the mediator and make sure you have a rundown from the mediator on how the mediation process works. When you get home after your intake session find a quiet space, grab a cup of coffee, and brainstorm – list down all the matters you want to be resolved, the options you have, and factors that may hinder you from reaching an agreement. Once you’ve planned this out figure out where you can compromise. Consider getting legal advice before your scheduled mediation date so you have a good understanding of your legal rights and responsibilities.
2. Be Cooperative
For the mediator to have a realistic understanding of the dispute, spouses must share information. The goal of mediation is to reach an agreement that works for both spouses. This forum also allows each spouse to voice their concerns and interests which assists in reaching an agreement. Being positional and stuck on one proposal will not result in a good outcome.
3. Negotiate and Compromise
Remember that the role of the mediator is to facilitate an agreement between the spouses in dispute. The mediator does not decide for the spouses. Make sure you keep your emotions at the door and focus on common interests. Family matters raise all kinds of emotions so list down your interests in a way that you don’t get carried away during mediation. Think outside the box – create options where both spouses’ interests align.
4. Treat Your Spouse with Respect
Avoid focusing on emotions during mediation when trying to reach a mutual agreement. Decisions based on strong emotions are never the best resolution. Treat each other with respect and practice active listening.
5. Try to Reach an Agreement
Any agreement reached involves change so be patient with your spouse. No one is a fan of change but sometimes it’s inevitable. Take time to reflect on all the interests involved – consider the reality of the situation – and consider all possible alternatives. Mediation gives you the freedom to tailor an agreement that works for both spouses and suits the needs of your family so you can be as creative as possible. Remember mediation also saves you the money, time, and emotional stress you would have had to deal with, had you decided to go to court.
Should you and your spouse agree to divorce mediation, please know that our divorce mediation attorneys in Creve Coeur and O’Fallon are here to help and ready to meet with you and your spouse to discuss if we are the right fit for your mediation.