Mediation

Saying Yes to Mediation

Kyra and Robert separated for a year, and after several attempts, at reconciliation, they decided to get a divorce. In their marriage Kyra had always been the one who called the shots. She decided what they were going to do, how they were going to spend their money, and where they were going to live. Eventually, Robert started to feel he had no real voice, and this was part of the reason they split up.

Kyra suggested mediation. Robert was afraid that once again his opinion would be disregarded or ignored, but he agreed to go for a consultation. He asked the mediator if he could speak to him privately about his concerns. All three agreed that this was acceptable, as long as what they discussed was later revealed to Kyra. Robert explained to the mediator how he felt like he had always been trampled on and didn’t think that he could speak up for himself in mediation. The mediator listened to his concerns and asked a few questions. He suggested they discuss this with Kyra to set some ground rules that would allow Robert some guarantees that he would have input.

The mediator rephrased Robert’s concerns to Kyra and suggested some possible rules that would allow Robert’s voice to be heard. Everyone agreed, and they began mediation. Robert still had a difficult time standing up for himself, but the mediator was careful to stop Kyra at times and encourage Robert to speak. They successfully completed mediation, and Robert finally felt as if Kyra had actually heard him and considered his opinions. He left the marriage with renewed self-confidence.

Mediation is an alternative that works well for almost all divorces; however, each person must make an individual decision as to whether mediation is right for him or her. Not only must mediation be right for you, but it also must be right for your spouse, since it is a cooperative process. When considering if mediation is right for your situation, it’s important to think about its pros and cons.

Are You a Good Candidate for Mediation?

  • In order to successfully use mediation, you must be able to:
  • Negotiate on your own behalf
  • Remain calm most of the time
  • Understand your legal rights and options
  • Be willing to make some compromises that can benefit both you and your spouse
  • Commit to the time necessary to go through mediation
  • Be able to pay the mediator, either by yourself or by sharing the cost with your spouse
  • Hire an attorney to represent your interests and educate you about your alternatives
  • Make a good faith effort to reach a mediated settlement
  • Provide complete financial disclosure
  • Be willing to consider alternatives and options you may not have previously thought of

The Pros and Cons of Mediation

Pros

  • You make your own decisions about the divorce agreement.
  • You can take as much time as needed to reach agreements.
  • Mediation is less expensive than litigation.
  • Mediation is a personal, face-to-face process.
  • Mediation is much healthier for children because their parents are not constantly fighting.
  • Mediation teaches you conflict-resolution skills, enabling you to work out future problems together without having to go to court.
  • Mediation requires you to treat each other with respect and decency throughout the process.
  • Mediation is less stressful than a courtroom proceeding.
  • The mediation process moves much more quickly than a court proceeding.

Cons

  • You must deal directly with your spouse.
  • You have to take responsibility for your own decisions.
  • You must compromise.
  • You must be able to stand up for what you want and negotiate on your own behalf.
  • You must work hard to make decisions.
  • You have to leave emotional issues behind and focus on decisions that must be made.

There is often a point in every mediation where one or both parties decide the mediation isn’t working, and you need to be resilient and move on to other issues. There are still many attorneys who do not understand or support mediation. Although almost every divorce can be mediated, it is not appropriate for all people or in all situations. You should not consider mediation if:

  • There is any history of domestic violence in your marriage or relationship
  • There is any threat of violence in your relationship
  • You are afraid of your spouse
  • You are unable to stand up for what you want and to communicate your views
  • You will not agree to a divorce or separation
  • You truly believe your spouse is hiding assets or income and will not disclose them during mediation
  • Child abuse is an issue in your divorce
  • One of you has a severe mental illness, a mental or emotional disability, or an untreated addiction to drugs or alcohol

These are important considerations because mediation can only work if both parties are free to negotiate with each other without duress and with a measure of trust that they will not be deceived, harmed, or threatened. If you are in a relationship that involves domestic violence or child abuse, the most important thing is to get yourself and/or your children to safety. If you are in immediate danger, call 911 or go directly to your local domestic violence shelter (check your local phone book or call the local police department to get contact information).