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The Mediation Process

Generally during a divorce or modification case, the Court will require the parties to attend mediation in an attempt to resolve the issues without the necessity of a high-conflict trial. Through mediation, couples can address all the major issues of their case:

  • support issues
  • custody issues and
  • visitation schedules.

In our office we encourage our clients to enter the mediation process with an open mind. Most of the issues addressed during mediation will be dealing with your children and how they might be affected by the outcome of this case.

 

We would take this moment to remind you that although two parents end their relationship with one another, regardless of the age of their children, the parties will have a future relationship by mere virtue of their parenting roles. The more amicably the parties can end their personal relationship with one another, the more mutually beneficial it will be overall for the family in general in the long run. Divorce is never easy on a family, but mediation can be especially effective in helping couples reach a mutually satisfactory settlement agreement.

Reasons Why Mediation Can Be Successful:

  1. Conflict is natural and normal. Issues concerning parenting and the end of a marriage are emotional and personal as well as legal. Mediation is a method of resolving conflicts.

  2. Many people simply want to be heard and understood in the divorce process. However, on their own this can get out of control, as each person triggers anger and resentment in the other -- often unintentionally. A mediator trained in counseling can assist the parties in acknowledging feelings but not allowing feelings to control the decision-making process.

  3. Mediation emphasizes that divorce is not the end of the family rather, a reorganization of how the family operates.

  4. The stress and anxiety associated with separation and divorce, particularly for children, can be reduced. Participation in mediation assists parents in affirming their love and affection for the children and can reduce the normal fears and anxieties of children concerning the "loss" of one parent. The worst aspect of a divorce for children is the conflict between the parents. It will be traumatic enough for them, but they can heal knowing that their parents are working together to make adult decisions and that they, as children, will not be put in the middle.

  5. The way your marriage ends will significantly impact the way you approach your future relationships. When you use a mediator to help both of you communicate and make important decisions, it can be easier to move forward and accept the past, rather than turning hurt and anger into an expensive court battle.

  6. In mediation, both parties are encouraged to recognize the positive in the other person and to find common ground for agreement. Especially when there will be future contact between the parties, such as in parenting, whatever goodwill remains between the parties should be preserved and not destroyed.

    Clients are often concerned about beginning mediation because of the current condition of their relationship with their former partner. Marital difficulties, or disagreements regarding the modification of prior orders, are often accompanied by anger, distrust and a breakdown in communication between parties. Two people who once were (and maybe still are) deeply in love often can grow to hate each other with passion. It is easy for this passion to lead to litigation, and the conduct displayed during the lawsuit may affect the parties' relationship for many years to come.

While settlement of a dispute is certainly no guarantee that the future relationship of the parties will be amicable, a contested trial is guaranteed to be detrimental. Things are said that cannot be unsaid. The ultimate result is likely to be unsatisfactory to both parties, and as a result the family as a whole. In order for a couple to mediate successfully the terms of their case, they do not have to be best friends.

Mediators often meet with parties who are sometimes so hostile that they cannot be seated in the same room, much less at the same table. However, a skilled mediator can diffuse negative feelings and help each party present his or her needs in a way that the other can hear and understand. Instead of spending thousands of dollars and months of battle, couples can often reach agreement after 3 or 4 two-hour mediation sessions.

The mediator remains neutral between the parties. That means the mediator can't give advice to either party, and also can't act as a lawyer for either party. The general role of the mediator is:

  • working toward a mutually acceptable resolution of each issue, including:
    - custodial issues,
    - child support and
    - virtually every issue necessary to bring closure to the case.

  • ensuring that each person feels their needs and concerns are addressed and feels supported by the process,

  • opening communication to permit the couple to deal reasonably with each other for the benefit of the children,

  • identifying the rights and responsibilities of each parent,

  • ensuring that the children have permission to love - and be loved -by both parents;

  • educating the parties on the importance of never speaking ill of one another in the presence of their children;

  • educating the parties on the importance of refraining from engaging in conflict in the children's presence or from involving the children in their adult conflicts.

The ultimate goal is to reorganize the family, not to "award" custody to one parent and make a "visitor" of the other. With the assistance of trained mediators, parents meet together in an informal setting to decide together, as a team, on a parenting plan for the future which best meets their individual needs and the needs of their children. The mediator is neutral and objective; his/her role is to help parents work cooperatively in resolving their disputes so they can carry on with the task of parenting their children.

There are a few occasions when mediation will deal with the division of property and debts as well. It is important before entering into any mediation discussions on these issues that you first meet with your attorney to ensure that you have a clear understanding of the possible value of your marital estate so that you are adequately protected during the mediation negotiations. Under no circumstances should you sign a final mediation agreement without first reviewing it in detail with your attorney.

When entering into mediation there are a few things to keep in mind:

  1. Be Cordial. You may be used to dealing with your former spouse by yelling and screaming at each other. But this position or attitude is not helpful in a negotiation. Politeness is not a sign of weakness, but strength. In most cases, civility lends itself to cooperation, and ultimately could mean a better outcome for you in the long run.

  2. Do Not Give an Ultimatum or Deadlines. Certainly some issues are more important than others. There may even be issues that are non-negotiable. But stating an issue in the form of an ultimatum stops the negotiating process in its tracks.

  3. Make Full Disclosure Voluntarily and Freely. Ask yourself: Are you more likely to settle a case where the other side has given you everything you need voluntarily, freely, and openly, or where they stonewall discovery? The answer is obvious. When the other side treats financial information like it was a highly classified government secret, settlement is less likely. This tactic raises the question, "What are they trying to hide?" Mistrust is not conducive to settlement.

  4. Don't Be Afraid of Taking the First Step. Many clients feel that taking the first step toward settlement is a sign of weakness. Timing is essential. To miss the timing because of fear of appearing weak does you no good. Taking the first step is actually a sign of strength: After all, you are so confident in your case that you assume the other side will want to settle, to avoid the embarrassment and cost of eventual defeat in court.

  5. Never Negotiate Backwards. Backwards-negotiating is what occurs when subsequent offers are further away from settlement than previous offers. There are times when facts change that may alter settlement positions. However, assuming no major changes or new discoveries, once a proposal is made, subsequent proposals should be closer to the other side's position, not further away. Backwards negotiating is not good-faith negotiating because it seeks to punish the other side for rejecting a previous offer.

  6. Never Refuse to Negotiate. True, some cases are harder to settle than others, and some cannot be settled. But you will never know unless you try. Settlement should be attempted in every case, no matter how remote the prospect might seem. Sometimes, the gap between the positions seems far too wide to "waste" time negotiating. Yet, it is amazing how often the gap narrows dramatically during mediation sessions. HOWEVER, the gap cannot narrow unless there is some attempt at communication.

  7. Be Prepared. The mediator assigned to your case may request certain information from you. Often this is information and documentation regarding your income, your debts, your assets and property, any appraisals of property you've had performed. The mediator may also request copies of several years' worth of income tax returns. In addition, you will also want to have in mind what your ideal parenting plan would consist of as a beginning point for the negotiation process. We recommend that you make two lists; one consisting of the things you absolutely "must have" and would be less willing to negotiate on and the other listing the things that are less important to you that you would be willing to give up and could therefore use to negotiate for things more important to you.

  8. Identify the Constraints. As you are thinking these points through you will also begin to identify those external constraints that must be recognized and factored in. For example you cannot divide more than is totally available. You can't ask for $15,000 and expect your partner to live on $10,000 if the total income is only $20,000. Or, if there is only one auto, and one income producer, and the only way to get to work is by auto, then this places a constraint on who gets the auto. If you think these points through in preparation, you won't be surprised in the actual negotiations.

If at any time during the mediation process you have any questions or concerns, you are encouraged to call our office and discuss those. We ask that you keep our office updated as to the progress of your mediation process. You can do so by contacting the paralegal assigned to your case after each mediation session. You are always welcome to have your attorney review any of the draft mediation agreements and you should ALWAYS have your attorney review any and all agreements before you sign them. Under no circumstances should you sign a final mediation agreement without first reviewing it in detail with your attorney.

You should be aware that while you are going through the mediation process, our office still has court ordered deadlines to meet and must still proceed and prepare your case as if it were going to trial. This means from time to time we will be asking for information from you and you may still have court hearings during this process. HOWEVER, we encourage our clients to reach a settlement resolution through mediation if at all possible. We feel that is always the best case scenario for all concerned. It's been our experience that mediating couples are more likely to be satisfied with the process and the results, likely to take less time and spend less money, and are less likely to go back to court later to fight about something. The main advantage of mediation is that it keeps you and your former spouse in control of your own case. That can make all the difference in your recovering from your relationship and moving on with your life.

 

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