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
Reasons Why Mediation Can Be Successful:
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.
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.
that divorce is not the end of the family rather, a reorganization
of how the family operates.
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.
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
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
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.
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:
toward a mutually acceptable resolution of each issue, including:
- custodial issues,
- child support and
- virtually every issue necessary to bring closure to the case.
that each person feels their needs and concerns are addressed and
feels supported by the process,
communication to permit the couple to deal reasonably with each other
for the benefit of the children,
the rights and responsibilities of each parent,
that the children have permission to love - and be loved -by both
the parties on the importance of never speaking ill of one another
in the presence of their children;
the parties on the importance of refraining from engaging in conflict
in the children's presence or from involving the children in their
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:
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.
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.
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.
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
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.
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.
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
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
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.