Most people think that the only course to follow in obtaining a divorce is the traditional litigation route. While it is true that any divorce requires some legal process, the degree of that process can vary. One excellent alternative to traditional litigation is 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 in a collaborative manner to work out all of 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 mediation work? The mediator has an initial meeting with each party. If they have already hired attorneys, it is likely that the mediator may speak with each attorney in advance and gather documentation. For the first meeting, the mediator might meet individually with each party and also with the parties together, explaining the process, 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 reach a resolution on contested issues. The mediator can help educate each party about the likelihood of their position winning in court, and also can suggest options that might satisfy both parties. Ideally, at the end of the mediation, the parties will have resolved all outstanding issues and can reduce it to a settlement agreement drafted by the mediator.
Is mediation for you?
The simple answer is it depends. If you feel that you and your spouse are in such a conflicted state that you cannot be in the same room together or calmly discuss issues, mediation will not work. On the other hand, if you and your spouse still have the ability to relate to one another in a respectful manner and feel empowered to resolve your issues together, mediation likely will help you at least limit the number of contested issues that may require the input of a judge.
A successful mediation will take much less time than an actual divorce, and minimizes the number of filings and in court time and cost. If this sounds like a viable option, you should investigate it further.
If you have questions about mediation and divorce, contact us – we can help.