18 Apr Should I Use A Mediator For My Divorce?
Generally, a divorce case begins when one side files a divorce complaint. From there, how your divorce unfolds is up to you and your spouse. While many divorce cases ultimately reach an out-of-court settlement, it is common for these cases to require one or more court appearances. Sometimes, these court appearances end in a full hearing or trial, where the court makes a decision and enters an order.
The idea of ending up in court can be scary for many people, not to mention expensive. One downside to going to court is that you are putting your divorce into the hands of the judge. This judge does not know you or your family, and, despite the best effort of your attorney, may not end up making the best decision for you.
Enter – Mediation. Mediation is a faster, less expensive alternative to court, but provides a structured process to resolve your divorce, rather than just going back and forth with your spouse (or their attorney) to try to reach an agreement. Almost every divorce client I meet with asks about the mediation process, since divorce mediation has a reputation for being quick and relatively inexpensive. The mediation process begins by selecting a mediator. The mediator will meet with the parties to help them get a sense of what they are looking for and help them reach an agreement. If you and your spouse cannot reach a satisfactory agreement in mediation, you always have the option of going to court later, or coming to an agreement outside of mediation.
I always recommend that each party retain his or her own attorney during the mediation process, since the mediator cannot provide legal advice. While an attorney will not actually participate in the mediation, they will let you know what to expect in the mediation session. You will feel much more prepared and confident going into a mediation when you know what to expect. An attorney will also be able to tell you whether or not the settlement you and your spouse are considering is fair, under the law. Generally speaking, you will be happier with your settlement when you know what your rights are and what you are giving up.
Another reason to hire an attorney even if you are mediating your case is because mediators don’t always draft the actual property settlement agreement, instead they prepare a “memorandum of understanding” outlining what the parties agreed to in the mediation sessions. The attorney for one party will usually draft a full settlement agreement subject to the review of the other party’s attorney. Even if the mediator drafts the actual agreement, it is important to have the agreement reviewed by your attorney as well.
I personally believe that mediation can be a great option for some divorcing couples, but to be effective, you and your spouse need to be able to communicate effectively during the mediation process. Sometimes, it is clear after one or two mediations sessions that mediation will not be successful, and that is okay. Sometimes, emotions are still too high for mediation to be successful, and at this point, it can be beneficial to take a step back and meet with an attorney to get a sense of whether or not it makes sense to continue with the mediator, or select an alternative course of action.