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Mediation 101
An introduction to mediation -- a voluntary settlement process giving you the opportunity to control the decisions that will affect your future.
By Diana Shepherd

Even if you and your spouse are still on reasonably friendly terms, you'll probably encounter difficulties as you try to work out the details of your separation. When emotions are running high, it's almost impossible to make rational choices.

In mediation, you deal with the issues and problems of separation and divorce outside of a courtroom setting. As a result, mediation is often less costly -- both financially and emotionally -- than litigation.

Mediation isn't marriage counseling -- that's for couples who want to get back together again. You may discuss your feelings about the marriage and the decision to divorce during the process, but the goal of mediation is to reach agreements that will help you, your ex, and your children (if any) adjust to the divorce -- and resolve future issues together.

How does mediation work?

During this cooperative, problem-solving process, an impartial professional helps divorcing couples to clearly define the issues in dispute and to reach agreements that are in the family's best interests. The mediator will generally meet with both of you at the same time, so if you and your spouse can't stand to be in the same room together, then mediation is probably not for you. You don't have to be best friends with your spouse in order for mediation to work, but you must be willing to search for fair and equitable solutions to the issues that you're confronting.

“Mediation is often less costly --
both financially and emotionally -- than litigation.”

Successful mediation relies on both partners being able to check their positions at the door and to communicate their needs honestly. It requires a lot of patience from both partners to separate each other's needs from their positions, but you have to be willing to do it.

A mediator helps you identify the points on which you already agree, then works with you and your spouse to create practical, informed solutions to the others. During mediation, you'll deal with issues both large and small. Here are some examples of typical questions that come up during the process:

  • How will we divide the things we own?
  • Who will the children live with?
  • What happens to our debts?
  • How do we decide who will get to live in the house?
  • If the kids live with my spouse, how can I keep in touch with them?
  • How can I live on a reduced income?

Every divorce is unique -- just as each marriage is unique -- so you're bound to have different questions to ask.

Each mediator will do things a little differently, but each is there to help you and your family find solutions to your problems. This doesn't mean that the mediator will try to talk you into something. He or she may suggest options to resolve the issues, but the final agreement is always up to you. A good mediator guides the communication process, allowing each of you to have your say. He or she will help to clear up misunderstandings and show you how to communicate more clearly with each other -- which should reduce any negative feelings you may have for each other.

Your mediator doesn't replace your lawyer -- although some lawyers are also mediators. The mediator should have a good knowledge of family law, but your own lawyer is still needed to tell you what your rights and duties are and to advise you on any written agreement you come to. A good mediator will encourage you to consult an attorney about specific questions of law and to seek a legal review of your agreement before you sign it. Your lawyer is there to look after your interests in the divorce; a mediator doesn't represent either party.

The next steps

The mediator will help you examine your situation in terms of your needs and interests. Again, your own situation is unique, but here are some of the steps you'll take during the mediation process:

  1. Identifying your issues. Obviously, you have to know what the questions are before you can find the answers to them. Issues you'll examine could include division of property and debts, alimony, child custody and support, and visitation rights for the non-custodial parent.
  2. Identifying your options. Once you know what your problems are, you can start working on solutions.
  3. Learning to work together. After you and your spouse have identified the issues and examined your options, you will work together to find a solution that's right for both of you. This doesn't mean one of you wins and the other loses: the "right" choice will probably be a compromise that both of you can live with.
  4. Getting it in writing. You and your spouse can work with your mediator to draft a document -- called a "Memorandum of Understanding" or a "Separation Agreement" -- listing the details of your agreement. This can either be an informal working agreement, or it can be filed with the court as a legal contract.
  5. Keeping your lawyer informed. Before you sign any agreement, your lawyer should check it. Your lawyer will ensure your agreement follows federal and state laws, that your rights are protected, and that you understand and agree to what is written down. If he or she sees a problem, you can go back to mediation, or the lawyer can add to or rewrite that part of your agreement.
  6. Making it legal. If your agreement is incorporated into a court order or divorce decree, it's a legally-binding contract. That's why it's so important to have legal advice before you sign the agreement.

Does it always work?

No, it doesn't. Successful mediation requires two individuals who are able to put their emotions aside and find solutions that allow each of them to achieve a positive result.

Here are examples of situations in which mediation may be impossible:

  • If there's been family violence and one spouse is afraid.
  • If there has been child abuse.
  • If there's a significant power or financial imbalance in the marriage. For instance, when one partner is too passive, or when full disclosure is impossible, a good mediator will probably reject the couple as candidates.
  • If one spouse won't agree to mediation, continue mediation, or "play fair." Remember, it takes both of you, and you both have to want it to work.

Advantages of mediation

Whereas litigation can often leave people feeling emotionally and morally compromised, mediation offers couples the chance to leave a divorce on amicable, if not friendly, terms and with a greater sense of integrity.

At a time when everything is falling apart, mediation can give partners back the control they lost and teach them the skills they'll need to keep talking to each other after the divorce is final.

There are several other possible advantages to mediation, including:

  • In mediation, all of the issues and problems of your unique marriage are brought out in the open, discussed, and where possible, solved. Mediation can establish better lines of communication and a willingness to compromise. This is key because you can't litigate for every contingency or foresee everything that could possibly happen in the future. In mediation, you can talk about what will happen if somebody loses a job or gets sick, or if the kids need braces or a math tutor.
  • You create your own agreement, rather than being told what to do by the court. In court, you're on opposite sides. In mediation, you're on the same side -- your family's side.
  • Mediation can save you time and money. The issues you can solve together don't have to be negotiated by two lawyers or decided by a judge in court. Not only is the cost of one mediator less than two lawyers, but you get the satisfaction of knowing exactly what's going on because you're part of the process. At no time do you have to worry about how your ideas are being communicated to your partner.
  • Mediation is confidential, which allows you to avoid public disclosure of personal problems.
  • Your agreement can be temporary, to meet the needs of your family for the short-term or to "try out" a new arrangement.
  • Mediation can teach you valuable conflict-resolution techniques. These new communication strategies can help you resolve any issues that arise in the future; if you have children, ongoing, healthy communication is essential.

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