“Why do most people not go through mediation when they get divorced?” -A direct quote from a recent client. Just like with most questions, the answer is: “It’s complicated.”
Mainstream pop culture lacks exposure to mediation in movies, podcasts, etc.
When someone informs a group of friends that they have made the difficult decision to get a divorce, unsolicited recommendations for lawyers, horror stories about experiences with their own divorces are shared, and advice, whether good or bad, is offered. Few movies or television shows accurately depict what mediators do as a profession (i.e. opening scene of Netflix’s Marriage Story).
Mediation is relatively new.
Divorce mediation as a formal practice in the United States began in the 1970s, when it emerged as a response to the growing dissatisfaction with the traditional adversarial approach to divorce. John Haynes, Gary Friedman, and Peggy Thompson were considered early pioneers in the mediation field. They developed models of mediation that were specifically designed for divorce.
In the 1980s, divorce mediation gained widespread acceptance as a viable alternative to traditional litigation. This acceptance was due in part to the efforts of many professional organizations like the Association for Conflict Resolution, the Academy of Professional Mediators, and the Association of Family and Conciliation Courts that promoted mediation to reduce the negative effects of divorce on families and helped establish widely accepted standards of practice.
Since then, divorce mediation has continued to gain popularity in the United States and is now widely recognized as a valuable tool for resolving divorces and other family law disputes outside of the courtroom. Many courts now encourage or require parties to attempt mediation before pursuing litigation.
Mediation isn’t the practice of law.
Although mediators have to know legal information and individual state laws, rules, and regulations, they can’t represent either party or advocate for them and they can’t give legal advice, even if they are an attorney! That’s right, even if your mediator’s day job is an attorney, they can’t give legal advice as they are providing a completely different service when they mediate.
This is why most states (47) allow non-attorneys to be mediators. Additionally, non-attorneys often only do mediation for their profession and don’t offer a multitude of different services like an attorney can. Some clients need to be represented or have specific concerns that need to be addressed legally. In those cases, the mediator can work with the attorneys to help find a settlement that addresses both parties’ needs and concerns without the judge having to make decisions for them.
Some attorneys recognize the skills of a good mediator and encourage their clients to attempt mediation. Other attorneys see non-attorney mediators as inferior because they didn’t go to law school. There are numerous blogs by attorneys out there that warn you of this! This harkens back to mediation not being the practice of law as it is truly its own unique process.
What are the Benefits of Divorce Mediation? How Does it Just Work?
In divorce mediation, the parties have greater control over the outcome of the divorce than in traditional litigation. They work together to create a customized solution that works for them, their children, and their lives rather than having a judge impose a one-size-fits-all solution. They schedule appointments at convenient times and work together at their own pace. When you are litigating, you must attend court during normal business hours, often forcing people to miss work. By moving at a pace that is comfortable for the parties, it ensures that everyone understands things clearly, allows for the ability to ask “what if” questions, and allows for an outside the box, collaborative approach.
Mediation provides an opportunity for the parties to communicate and negotiate with each other together, with the help of a neutral mediator. The mediator can facilitate productive conversations, help the parties understand each other’s perspectives, and keep the discussions on track. Mediation also allows for more transparency as most communications are together. This prevents the anxiety that comes with litigation.
In litigation, commonly you will hear a party say, “you can only talk to me through my attorney from now on!” Then the parties get entrenched with their own sides and then sadly fight until most of the financial resources are exhausted or they end up truly hating the person they once married and still must co-parent with moving forward.
Divorce mediation can be less expensive than traditional litigation. Mediation typically requires fewer court appearances, if any at all. Most clients resolve everything in mediation saving money by paying one facilitator vs. two advocates, in a long, drawn-out process.
In litigation, each side usually pays for their own attorney, and then if there are concerns about the children, then a judge may appoint a Guardian Ad Litem (GAL) for the children to evaluate the parents and recommend to the court their findings. This is now a third professional that would be involved driving up costs further.
Mediation can often be completed more quickly than traditional litigation. The parties may schedule mediation sessions at their convenience allowing for all matters to be resolved in a timely, and organized manner. It may provide an opportunity for a family to have a trial run on a tentative agreement to see how it works when put into practice. Most of our clients finish everything in two to three months preventing the nightmare scenario of a two-to-three-year litigation.
Mediation is a confidential process, which means that the parties can speak freely without fear that what they say will be used against them in court. This is where most lawyers struggle when serving as a mediator, because they have been trained to instruct their clients to not give up so much information and be careful what they say to one another, so it isn’t used against them.
In mediation, due to the confidential nature, there is no reason to hide things from one another or hold back because everything is confidential. Even if the mediation breaks down, an attorney’s litigation strategy should be unaffected since nothing can be brought into court that was discussed in mediation.
Mediation Helps You Establish a Foundation for Your Future
These are just some of the benefits of divorce mediation. Just like anything, there are many ways to get divorced. Most mediators get into this profession to help people avoid the nightmare divorce stories and help set people up for success as co-parents moving forward.
Don’t your children deserve two happy and healthy parents that continue to work as a team for the best interests of their children? We think so, and that is why we are here to help.