Divorce mediation allows each party to be in control of the outcome of the divorce. The couple, along with the mediator, resolves their disputes together. The only people making decisions are those involved in the dispute, unlike arbitration or litigation where a judge or an arbitrator makes the final decision. In mediation, the couple sits down in the same room with a neutral mediator. During negotiations, the mediator ensures that the setting is neutral and non-threatening. With the mediator’s help, the couple works through all the issues that need to be resolved. Meetings are flexible and confidential and offer each party an environment in which to make decisions not only about their own future, but their children’s. If they need to continue to make joint decisions about their children in years to come, the process learned in mediation can serve as a model for these communications. It has been shown that divorce settlements using mediation have a consistently higher compliance rate, because the husband and wife have created their own agreement.
Mediation is not a substitute for the services of a qualified attorney. Even when the mediator is a lawyer, he/she cannot give either party legal advice. Both parties should obtain independent legal advice during the mediation process, and they should have their lawyers review the agreement before it is signed. The husband and/or wife can bring their lawyer to mediation or can use their lawyer as an advisor between sessions.
Couples who wisely choose mediation instead of litigation can also meet with a CPA to discuss financial and tax issues regarding property division, child and spousal support, and options regarding the family residence. Often the wife or husband will meet with a CPA separately to get advice, to help with decision-making, and to adequately prepare for financial negotiations in mediation. The CPA maintains communications with the lawyers and mediator to keep the whole process moving along smoothly.
Mediation is voluntary. It continues only for so long as the wife, husband and mediator want it to. Either spouse can withdraw from mediation at any time for any reason. The mediator should not allow one party to overpower the other in mediation. If one of the parties is unable to be effective during this process, the mediator will stop the mediation. Furthermore, state law says that no one, not even the two parties, can use what is said in mediation as evidence in court. What happens in mediation is as confidential as settlement negotiations between parties and their attorneys, unlike a motion or trial in litigation that is open to the public.
Mediation works. Research shows that when one compares couples who have mediated their divorce with couples who go through an adversarial divorce, mediating couples are more likely to be satisfied with the process and the results, are likely to take less time and spend less money, and are less likely to go back to court later to litigate issues.
The main advantage of mediation is that it keeps both the husband and wife in control of their own divorce. That can make all the difference in moving on with one’s life. Mediation usually allows the couple to get through their divorce with substantially less conflict than they would experience in an adversarial divorce.
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