Can Divorce Mediation Help Clients Avoid Going to Court?
By: Megan Mason
Divorce mediation is among the most widely used methods of bargaining a divorce settlement peacefully. In divorce mediation, you as the divorcing couple or, in certain cases, both of you and a neutral third person, known as a mediator, meet with a trained professional mediator in an effort to talk through and settle the key issues in your divorce peacefully. While both you and the mediator to try to reach an agreement, there are some important considerations for you as the divorcing couple to keep in mind when you are discussing the issues at hand. If you don’t keep these simple but important things in mind while discussing divorce mediation, then you will likely find that the process to be less than satisfactory and may wind up costing you more money and much longer than you planned on spending on the divorce.
The first and most important thing to remember is that you must remain calm and you must listen to your divorce mediator. Even if you feel that you are the most vulnerable being represented by your divorce attorney, it is vital that you do not show emotion during the mediation process. A professional divorce mediator is well-trained and experienced in helping divorcing couples through this very emotional time. As such, your attorney is not there to “help you” with your emotions or feelings. Remember, your attorney works for you; he/she will do everything in his/her power to ensure that you receive fair compensation from your spouse, but they cannot act as a counselor or mediator for you.
Remember that if you decide to pursue a full divorce settlement, then you will likely need the services of a licensed divorce lawyer. In many states, including California, you will also be required to have a separate court filing to complete the divorce proceedings. You may find that you do not want to waste your time and money are going to court over issues that can be resolved much more efficiently through the use of a divorce mediation. However, even if you choose to proceed with a divorce mediation, keep in mind that both parties must agree to the mediation before it can proceed. If either spouse does not agree to the mediation, it will not go on and will not provide any type of representation for you.
Many couples who utilize the divorce mediation process have found themselves much happier after the process. While the divorce mediation is one way to address a difficult matter, it is not the only one. There are many other ways to resolve a dispute, such as through an amicable settlement agreement, negotiation, or arbitration. As you can see, if you feel you are at a disadvantage due to not having a lawyer, there are many other options available to you.
Although there is a greater emphasis on the role of the divorce mediation in resolving disputes between spouses, this does not mean that dispute resolution should not play a part in the overall settlement process. There are many instances where a neutral third-party individual will mediate a dispute resolution between two individuals or couples. In many cases, this mediator is a former spouse of the person being contested with. This can be extremely beneficial as it helps to remove some of the emotion and hesitation that may come from having to fight a battle in front of a judge or jury.
Once the divorce mediation has been completed, there is typically a parenting plan created as well. The parenting plan is designed to help all parties involved in the divorce find a solution that is acceptable to them. Usually the parenting plan addresses the children as well, although it may also address visitation or custody issues. This type of plan is often recommended by both the divorcing couple and their attorneys. In some instances, parents wish to include a document stating what type of custody they will have during the child custody dispute resolution process.
Along with the parenting plan, there may be a child support agreement created as well. The divorce mediation process typically enables both parents to enter into a financial agreement with the ex-spouse regarding the amount of child support that they will pay. It is important for the ex-spouse to understand that the court rules regarding child support change frequently. As such, if they believe that they are not paying an appropriate amount of child support, they may wish to speak with their attorney about obtaining financial documentation regarding their performance. If they do not have access to this documentation, their attorney may be able to review it with them and fill out an Affidavit of Support form. However, the court may require the supporting party to provide an actual written affidavit stating that they are providing an accurate representation of their financial situation.
Both the divorcing couple and their attorneys should remember that they are not required to hire a divorce mediator during the divorce mediation process. Although, many couples feel that they are better served through this process, it is not required. If either party feels as though they are getting a good deal during the divorce mediation process, they should not hesitate to let their attorney know. This is because the attorney may be able to provide information that the spouses would not otherwise be aware of during the litigation process. In addition, the divorce mediator is well-versed in divorce laws.