When spouses divorce, they can proceed in three ways. First, if they agree on everything (perhaps no children and little property), they can have an uncontested divorce. Second, if they have differences on key issues like custody or support, they can resolve the differences through litigation or mediation. Litigation is the traditional method where each spouse has an attorney and they use the adversarial process to reach a conclusion on each pending issue of their divorce, either by settlement or by trial. Mediation involves only one lawyer, a mediator, who will help the spouses reach an agreement on their own with or without other attorneys and will usually draft the settlement documents that the parties will file with the court to dissolve their marriage. Is mediation right for you?
Mediation has its advantages. First, it takes much less time than the usual court process. Traditional litigation can take between six months and one year, depending upon the complexity of the case and the degree of conflict. Mediation usually takes less than three months, depending upon the availability of the mediator. Second, mediation costs less than traditional litigation, as the spouses need only hire one attorney. Third, mediation tends to keep the conflict low. Because mediation is premised on the ability of the parties to communicate and collaborate on a mutually acceptable outcome, mediation tends to proceed with less hostility. Fourth, mediation can keep the children free from the process, not only from direct participation but also from seeing their parents openly fight or having records to read in the future detailing all their dirty laundry.
But mediation is not for everyone. Mediation only works when the spouses truly have the ability to work together, and many couples going through a divorce can barely stand to be in the same room with each other, let alone work rationally through property division or a custody schedule. And where parties do not see eye to eye on key custody matters or have children who are struggling with the divorce, having attorneys and court intervention might be necessary. Mediation is often highlighted for creative problem-solving, but parties can do that in traditional litigation as well. The ability to think creatively comes from the spouses and their attorneys, not the mediation process itself.
If you think mediation might be a viable option for you, before you and your spouse both get attorneys, meet with a mediator, and see if that scenario fits your personal circumstances. If you commit to the mediation process, then it is important for you to know the steps involved in formal mediation. There are six steps to a formal mediation: (1) introductory remarks; (2) statement of the problem by each spouse; (3) information gathering time; (4) identification of the problem; (5) bargaining and generating options; and (6) reaching an agreement.
1. Introductory Remarks
The mediator will wait until both spouses are present and then make introductions. The physical setting will be controlled so that neither spouse feels threatened. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issues and confirm the case data if position statements have been pre-submitted. Next, the mediator will define the protocol and set the time frame for the process. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.
The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. The mediator will usually ask that if attorneys are present, they can confer, but the spouses should speak for themselves. Spouses should not interrupt each other; the mediator will give each spouse the opportunity to fully share their side of the story.
2. Statement of the Problem by Each Spouse
After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will then ask the client to also make a statement. The rationale behind the statement of the problem is not a search for the truth; it is just a way to help solve the problem.
3. Information Gathering
The mediator will ask the spouses open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the spouses and will summarize often. This helps the mediator build rapport between the spouses, especially when a facilitative style is used.
4. Problem Identification
This might also be part of other segments. The mediator tries to find common goals between the spouses. The mediator will figure out which issues are going to be able to settle or those that will settle first.
5. Bargaining and Generating Options
Methods for developing options may include joint sessions, developing hypothetical plausible scenarios, or a mediator’s proposal where the mediator puts a proposal on the table and the parties take turns modifying it. However, the most commonly used method is the caucus.
Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.
The mediator may decide to hold private sessions with each spouse in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options and to bring about possible solutions for the parties to think about. Spouses can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.
6. Reaching an Agreement
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.