Separation & Divorce Mediation
When one or both marriage partners determine that a separation or divorce is necessary, it is a painful time for all involved. Because of the painful emotions, conflict is often an aspect of the experience. Divorce or separation mediation helps address not only the practical aspects of family re-organization, but also the emotions involved in moving households, dividing family belongings, and determining a parenting plan or a consent agreement. It can also be used as an adjunct to resolve some of the issues before seeking legal support to finalize the separation or divorce agreement.
What is Mediation?
Grounded in a win-win philosophy, mediation is a positive, cost effective means of resolving the conflicts that often accompany the decision to separate or divorce. Mediation is a process of dispute resolution that involves the marriage partners who are dissolving their relationship, and a neutral third party – the mediator. It provides an alternative to using the court system for this decision making process and allows both parties input into the workings of the reorganization of their family.
The mediator’s role is to be a knowledgable, neutral third party who assists the parties to create a non-legally binding agreement – often referred to as a Memorandum of Understanding (MOU) – that outlines what the parties agreed to during the mediation process. It is the mediator’s role to ensure that each of the parties has equal say and input into the development of the MOU; to ensure that the agreement reflects the best interests of any children of the marriage; and finally to ensure that the process is transparent – meaning that there is full disclosure of all financial matters. It is also the responsibility of the mediator to ensure they are up to date on the laws that govern the issues surrounding separation and divorce so that the MOU is seen to be equitable by the parties’ individual lawyers as well as accepted by the judge who eventually oversees the file. On a final note, a mediator cannot be called to be a witness by either of the parties’ lawyers in the event that mediation breaks down and requires the intervention of the courts.
How does Mediation Work?
Each mediator has a different style or process for conducting mediation. I prefer to meet with the parties individually, initially. This offers me the opportunity to get to know each of you one on one, and get an idea of what the key concerns are for you. From the information you provide me, I create a list of items I believe are agreed upon, and another list that requires mediation. Together, we confirm those items that are “resolved”, and prioritize the unresolved items based on their potential to be resolved without going to court. I believe that beginning to work on the ones most likely to be worked out gives us a sense of satisfcation and encourages us to address the more complex ones. Then, through several joint meetings – a process of communicating concerns and negotiating best outcomes – we address each concern until such time as mediation breaks down or we have resolved all the issues.
What is the Outcome of Mediation?
If all goes well, we develop an MOU that is a summary of the items the two of you agree on and may identify items that were not agreed upon, so the legal system can resolve those issues for you. It is important to note that the MOU is your document and you can do with it as you wish at that point. It is not legally binding, and so it is usually my advisement that once we sign it to indicate agreement and completion, you take the MOU to your respective lawyers so that a formal, legal agreement can be created.
Benefits of Mediation
- Increased sense of power and control in an otherwise emotionally disempowering situation
- The cost of mediation is significantly less than going to court.
- The process often allows the parties to put closure to their relationship as a couple
- Agreements are often more “durable” – meaning parties who use mediation are less likely to go back to court to resolve future issues
- Parties often feel a sense of accomplishment when they are able to resolve the dispute themselves.
- Lawyers are often able to expediate the process with an MOU because there are fewer misunderstandings about what each party agrees to.
- Mediation is a confidential process.
- Mediation accommodates the needs of the children and encourages the involvement of both parents.
When is Mediation Not a Good Idea?
- Because mediation is predicated on the parties sharing equal power and input during the process, if domestic violence has been present in the relationship, or if there is a pervasive imbalance of power between the parties, then mediation cannot proceed.
- If one or both parties are not willing to provide full financial disclosure, then mediation cannot proceed.
- If it appears that one of the parties is not negotiating in good faith, for example, attempting to use the mediation process to maintain the status quo for their benefit, then mediation cannot proceed.
- If the level of hostility between the parties becomes unmanageable, then mediation cannot proceed.