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“M” is for “Mediation” – The alternative to litigation

People typically get divorced as adversaries. They have attorneys to fight or litigate in court about child custody, child support, alimony and the division of assets. It can amount to high legal costs, high stress and a lot of animosity.

There is an alternative to litigation. Increasingly couples are turning to mediation as a realistic alternative. Mediation is the process in which a mediator, who is a trained neutral person, facilitates the resolution of a dispute between two or mare parties. Mediation is non-adversarial with the objective of helping parties arrive at a mutually acceptable agreement.

For people who chose divorce mediation, the advantages may include lower costs, quicker resolution, more control over the dispute, confidentiality, cooperation, and support of family relationships. Often, all involved feel like there was no “winner” or “loser”. Conversely, litigated cases can often be very costly, time consuming, public, destructive of family relationships and people are more apt to believe that one “wins” and one “loses”.

Mediation is considered to be less conflictual. The aim of mediation is to assist the couple in finding common ground and to be able to part ways with minimal conflict. The role of the mediator is to keep the conversations productive and focused when the couple finds themselves fighting the same old battles and the mediator steers the couple toward making decisions that both thinks are fair. It is not a mediator’s job to reunite the couple. Their focus is to help the couple agree upon a way to separate that both believe is fair and workable.

Mediation assists spouses in dealing with the fact that as parents, they will have an ongoing relationship even after the divorce. The hope is that through the mediation process they can both be on the same side when it comes to the children which, will help both parties to have a better long-term relationship with their children.

Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent legal advice during the mediation process, and to have their lawyer review the agreement before it is signed. Even when the mediator is a lawyer, he/she cannot give either party legal advice. Further, many of the same tools are used in mediation that are used in litigation. The parties often need to seek the support of experts such as accountants, real estate appraisers and tax attorneys to do things such as calculate income, determine net worth and helping to give the parties a realistic basis on which to divide assets and determine support.

There are times when mediation is not appropriate. For instance, if there is or has been physical and/or emotional abuse by one spouse. If one parties’ judgment is impaired (i.e. drug/alcohol addiction) or one spouse is hiding assets.

If mediation does not work, the parties can stop the process and proceed with a more traditional process. Hopefully, the mediation process can help the spouses with a model for future communications and interactions with each other which is especially helpful when children are involved.