How to determine if mediation—instead than DIY or heading to court—is the better way in handling your divorce.
When you’ve chosen to terminate your marriage, one of the initial things you must decide on, is what method you’ll use for your divorce. You can hire an attorney and hash it out in court, use a DIY service, or attempt mediation.
What Is Divorce Mediation?
Throughout divorce mediation, the spouses meet with a knowledgeable, unbiased mediator in an informal environment. Sessions usually occur at the mediator’s office, but there are a lot of options for being involved in online (or “virtual”) mediation sessions. Irrespective of the method, the mediator assists the spouses resolve their issues—like child support and the way property is divided, amongst others—and document the resolution in an agreement.
After a couple has developed a settlement agreement, they are able to file an “uncontested” divorce within the court. The court usually expedites uncontested cases since everything has already been worked out; judges are typically able to finalize the divorce in a matter of a few months.
The Pros of Divorce Mediation
If you are unable to do a DIY divorce since you and your spouse have unsettled issues or you just need a little assistance with the documents, attempting mediation prior to putting your case in an attorney’s hands has a lot of advantages.
Help Navigating the Issues
When you both are in agreement, you have choices for divorcing fast and inexpensively—including using online divorce services. But if you both have issues you can’t come to an agreement on, a lot of online divorce services are not going work for your case.
Additionally, the more convoluted your case is—for instance, when you have a lot of assets or a child that has special needs—the more probable it is that you both are going to need some direction resolving your issues. An experienced mediator can make you aware of the details you should work out, outline possible solutions that have worked for other divorcing couples, and help you finish the document.
More Control Over the Result
To a large extent, mediation put your future in your own control, instead of leaving it up to a judge to determine what happens to you, the children, and your assets. Nobody knows about your situation as much as you and your spouse. Mediation can assist you in deciding the result of your marital termination on your own conditions.
Judges most of the time have big case-loads, with only a small amount of time to consider each case presented before them. With mediation, you have the chance to explore the issues and devise creative solutions. For instance, through mediation, the spouses might come up with a particularly tailored solution where the spouses keep the family home until the children finish school, or the children live in the house and their parents move in and out.
Faster Resolution of Your Divorce
One other benefit to mediation relates with time. When you hire attorneys and go to court, you could find yourself caught in a process that moves as fast as a sloth. Your case is just one of thousands to be managed by one of a small number of family court judges. Mediation, at the same time, can progress at whatever speed both of you, and your mediator agrees upon.
Considerable Cost Savings
When you file for divorce prior to resolving matters such as custody, child support, allocation of marital property, and spousal maintenance, it’s more probable that you’re going to need a lawyer to assist you in getting the result you want. With so many issues requiring to be resolved, it won’t take long for attorneys’ fees to add up. And the more squabbling there is, the faster those fees pile up.
In a lot of mediations, the spouses divide the mediator’s fees between each other. So, if the mediator is a lawyer or another professional trained in mediation (like a CPA or therapist), the odds are you’ll be paying much less than if you had gone to court. And, if the notion of representing yourself in a mediation seems intimidating, you do have the choice of hiring a lawyer to advise you throughout the process.
Nevertheless, there are situations in which divorcing spouses might require other professionals for assistance with mediation. For example, you might require an appraiser to assess the value of your property or a therapist or caseworker to assisting in working out child custody and visitation matters. But you’d probably need help from those same individuals if you were to evade mediation and head directly to court. And, in all likelihood, you are going to pay even more for their services—you would have to not only pay for consulting with them but also for them to give testimony in court or develop a written report.
Control With Your Schedule
When going the court way, you don’t have control with scheduling—the court is going to tell you when you must present yourself, with little concern for your personal schedule and prior obligations. And it’s not uncommon to go to court for your hearing or for a conference and find yourself sitting for hours before a judge can see you. Through mediation, you and your soon-to-be-ex set the date and time of sessions with your mediator. Many mediators even provide night time sessions, a huge benefit for those that have daytime jobs.
A Good Beginning to Your Post-Divorce Relationship
When the mediation concludes, you and your spouse are going to likely be on better terms than if you’d spent a year or so fighting each other in court. Court conflicts tend to foster lingering animosity and resentment that becomes just about impossible to overcome even after the divorce is finalized. The negative impacts of that are clear, for both you and your children.
Mediation is also able to set the tone for an improved relationship and make for streamlined co-parenting in the future. In fact, long-term studies have shown that mediation culminated in parents that don’t live with their children seeing them more often than those went to court for their divorce.
The Cons of Divorce Mediation
As constructive as divorce mediation could be, it might not work for everybody. Consider these possible cons.
You Won’t Have Someone Negotiating for You
For those that are comfortable talking about and negotiating legal issues without consulting a lawyer, mediation is a perfect option. Even though qualified divorce mediators understand the relevant law and can create a settlement recording what you both are in agreement with, they are unable to give you legal advice. (A lot of qualified divorce mediators aren’t attorneys—they can be all types of professionals, like therapists, caseworkers, and CPA’s.)
Many mediators allow attorneys to be present at mediation sessions. Others, however, advise against having an attorney present—particularly when only one spouse going to be represented—since they’re concerned the presence of an attorney is going to create a disparity in the negotiations. Additionally, when both spouses bring an attorney with them, the setting can seem hostile.
When you want to continue with mediation but are also wanting to acquire legal advice, think about consulting with an attorney outside of the sessions. You are able to do this following each session, or at the conclusion of the process.
Mediation Is More Expensive Than Do-It-Yourself Divorce
If you’re wishing to keep your costs down, bear in mind that mediation is not as cost-effective as DIY divorces. But in DIY divorces, you’ll have to maneuver through the divorce process devoid of any help, which means you are going to have to familiarize yourself with court regulations and procedures.
And unless you’re in complete agreement with your spouse and the divorce comprises of nothing more than terminating the marriage, you could end up unsatisfied with the DIY outcome. If you settle just to settle, you could agree to something you are going to end up regretting. For instance, you could make a decision about the division of a significant pension or real estate—or settle on a spousal maintenance payment—and then discover you miscalculated the legal or financial repercussions.
Mediation Isn’t Fitting for a Couple With a Power Imbalance
A successful mediation is subject to fair conditions. Mediation can be unsuccessful if either spouse has advantage in one way or another. For instance, a spouse that bullies and is used to “winning” may by no means agree to settle. Or a spouse that has endured domestic violence could be too fearful to speak freely in mediation sessions. (Continuous domestic violence and other harmful circumstances essentially rules out mediation, meaning that the potential or actual victim requires professional help.)
Similarly, mediation is less probable to be successful if a spouse has a history of being dishonest or unreliable. This is particularly true when a spouse is alleged of concealing assets or squandering funds. You can’t come to a meaningful settlement unless both spouses are honest about every issue involved, comprising of everything they are owners of.
Additionally, when one spouse is legally alleging that the divorce is the other fault or has already retained a lawyer, then the other spouse needs to have a lawyer.
In Between Mediation and Litigation: Collaborative Divorce
Through collaborative divorces, each of the spouses hires a lawyer specifically trained in the collaborative divorce process to represent them in settlement negotiations. Mediators, judges, or arbitrators are not involved. The collaborative divorce lawyers attempt to negotiate a settlement deal outside of the court and then take the agreement to a judge for authorization. Prior to starting discussions, the spouses and lawyers agree that if the spouses aren’t able come to an agreement, the lawyers are going to withdraw themselves prior to the divorce going to court. Having to locate (and pay) a new lawyer is usually a powerful motivating factor for the spouses to put their best effort forward for settling their differences. Collaborative divorce is typically more costly than mediated divorces, but less costly than a divorce that lawyers file suit in court.
The Bottom Line on Divorce Mediation
When, after considering the pros and cons, you determine mediation is appropriate for your divorce, you can suggest it to your spouse. In order to move forward, you are going to both need to agree to mediate your divorce.
On the other hand, if the court doesn’t order it, be assured that you by no means required to mediate. And, when you’re not sure, it might be a good idea to meet with a family law lawyer to go over the specifics of your case, if mediation is appropriate for your divorce, and if you could benefit from having a lawyer represent you through mediation.
Joseph Pandolfi, R. J. (2021, July 2). Pros and cons of divorce mediation. www.divorcenet.com. Retrieved November 11, 2021, from https://www.divorcenet.com/resources/pros-and-cons-of-divorce-mediation.html.
Speak with Our Mediators in Arizona Today
While the mediation process is not for everyone, it can save you money, stress, and hassle. Speak with a professional mediator to find out if it is right for you.
If you’re ready to start your consultation with Ogborne Law, visit our Mediation Consultation request page.