The Benefits of Pursuing Divorce by Mediation
Seventy-five percent of couples who divorce through mediation are “extremely satisfied” with the process as compared to only 40 percent of couples who indicate satisfaction with the courtroom process. Divorcing one’s partner is an emotional, draining and costly process. Divorce proceedings can take a significant amount of time, especially if the couple involved has difficulty agreeing on division of property or custody of minor children. Yet, the length of time, money and emotional energy spent in a high-stress court proceeding can often be diminished by choosing mediation.
What is Mediation and how does it Work?
Mediation is an alternative process to a courtroom divorce. While the settlement reached in a mediation will be considered “court-ordered” and thus carry all the legal weight of a courtroom divorce once the mediation agreement is signed, mediation offers the couple, assisted by their attorneys, the chance to work their differences out themselves, rather than submitting to the will of a likely overworked judge.
In a mediation proceeding, the couple, their attorneys and a neutral mediator work together to construct a divorce solution that works in the best interests of the couple. Most often, the mediator will conduct the mediation proceeding using private caucuses and joint sessions. During the private caucuses, the mediator will shuffle between the rooms of each party with the attorney being in the room of their client. The joint session includes face time with the opposing party; this can be an important point in the mediation and the mediator will control the levels of hostility. Some of both formats can be beneficial. As the mediator is neutral, he or she cannot give legal advice and does not represent the interests of either party. Each party obtains legal advice from his/her attorney while the mediator encourages the collaboration, dialogue and creative problem-solving of the couple.
The mediation process is voluntary and confidential. Neither person involved is forced to submit to the will of a judge or an agreement. Nothing said to the mediator during the negotiations will be discussed with the other party or a judge. This means that each person’s interests can be voiced in an environment designed to promote the creation of a sustainable, mutually beneficial separation agreement through compromise between the couple and their attorneys. By focusing on creating an agreement based on the interests of the couple rather than focusing on the “courtroom battle,” the majority of couples who divorce through mediation are “extremely satisfied” with the process while only 40 percent of couples indicate satisfaction with the courtroom process.
Domestic Violence Considerations
Research indicates that a high percentage of the divorcing population has experienced domestic violence at the hands of his or her spouse. It has also been recently estimated that at least half of custody and visitation disputes referred to mediation involve a victim of spousal abuse. In most states, mediation is still an option for domestic violence victims, provided that adequate safety measures are implemented to protect the victimized spouse.
Of course, safety is the first concern for the spouse. If the victimized spouse is afraid for her or his safety with the mediation process, mediation should be avoided; the victimized spouse knows the abuser better than anyone does. If the victimized spouse wants to use the mediation process, the attorney will need to discuss whether the victimized spouse will have the capability to pursue her or his best interests in light of the past abuse. In choosing mediation, the attorney for the victimized spouse should ensure that a safety plan is in place prior to the first mediation meeting. The safety plan should include provisions regarding physical safety issues such as ensuring the use of large tables that provide barriers to immediate contact, separate and safe waiting areas and a conference room which allows for easy exit. The plan should also contain provisions designed to address the power imbalances between the couple while they are negotiating. Additionally, the attorney must consider whether a spouse experienced emotional abuse in the marriage as this will also cause power imbalances. Emotional abuse is used to control, degrade, humiliate and punish a spouse. While emotional abuse differs from physical abuse, the end result is the same – a spouse becomes fearful of their partner and begins to change their behaviors to keep their partner happy and an imbalance of power develops. The attorney representing the abused spouse must take ample time in preparing the spouse for the mediation to ensure she or he is ready emotionally and educated as to the process and possible outcomes. The attorney and the abused spouse should discuss the following matters before mediation:
- the issues in the case
- the strengths and weaknesses of the case
- the best case scenario and the worst case scenario
- any secret expectations, fears and needs (Too often, this comes up for the first time in mediation.)
- the other party’s expectations, fears and needs
As long as these safety measures are pursued and the attorney and the abused spouse maintain good communication, mediation will likely remain a viable option for abused spouses, provided that they choose to pursue their divorce settlement in this way.
Benefits for Divorcing Couples and Children
In addition to saving the couple money, accelerating the divorce process and promoting communication, the mediation process offers several other advantages over the courtroom process. Research indicates that divorce settlements created by mediation last longer and better protect the interests of the couple and their children than divorce decrees mandated by a judge. Research also indicates that because the process is voluntary, mediation increases the rate of couple compliance with the divorce or custody settlement and helps to improve the relationships of those involved.
With mediation, the parties have control over both the process and the outcome. The parties pick their own resolution; nothing is forced upon the parties as is in the courtroom. The solution is under the control of the parties; therefore; mediation can achieve outcomes not available in court. For example, agreements can be reached managing tax consequences.
Once of the biggest beneficiaries of the mediation process are the divorcing couple’s children. Recent research has confirmed that it is parental conflict and not divorce itself that harms children in the long run. Mediation proceedings help to foster a respectful, non-adversarial relationship between the parents defined by healthy communication. Judges are mandated to consider “the best interests of the child” in custody and visitation considerations, which often leads spouses to paint the other as a harmful presence in the child’s life in order to increase their potential for retaining as much custody as possible. Although many people come to an attorney concerned about saving money, mediation has the potential to not only save money, but more importantly, save the couple’s relationship with their children. Mediation can prevent the parties from hearing their spouse say permanently emotionally damaging words alleged in court to gain more custody of the child. Such harsh words only produce bitterness and destroy the ability to co-parent effectively which is damaging to the children. Mediation provides an environment in which such animosity is discouraged.
As mediation serves to decrease spousal/parental conflict, the children’s needs can be brought into clear focus by a calmer, more clear-headed couple. Some states even allow children to voice their concerns within the mediation process, which can help the children to feel heard and to increase the likelihood of a productive parent-child relationship post-divorce. Research also indicates that parents who enter mediation are more satisfied with the outcome of the process and had better communication with their former spouse regarding their children’s needs in the long-term than those who submit to a courtroom process.
For Further Reference
If you are going through a divorce, please contact an experienced family law attorney. An attorney will be able to answer questions about your divorce and advise you as to whether mediation is right for your situation.