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How Can We Avoid Taking Our Divorce to Court?

Sometimes, a couple reaches a point where they both agree that divorce is the best path forward – but they don’t want to end up trapped in a long, contentious court battle. That’s entirely understandable. Long, drawn-out court battles can result in additional stress, time, and expense that’s simply undesirable, and in many cases, unnecessary during an already difficult time. Many people ask – how can we avoid taking our divorce to court? For many couples, mediation is the answer.

What is Mediation, Anyway?

What is mediation? It’s an important question to ask. Mediation is a method used to resolve disputes in which both parties involved in a dispute agree to meet with a neutral, third-party mediator who helps them to work toward the resolution of their issues cooperatively and communicatively. Often, the mediator will be another attorney who is a certified family and divorce mediator, a trained professional counselor, or in some cases even a retired judge.  

During the mediation, the mediator will work with both spouses toward resolving the issues between them, from child custody and child support to property division, alimony, and anything else that may be in dispute. The parties will typically meet in a location of their choosing, and both parties can bring their attorneys if they choose to do so. The discussion is typically informal, and there is a good deal of back and forth discussion between the parties as they work toward finding solutions for their issues. The end goal of the process is to create an agreement that addresses the matters at issue and sets forth the decisions that work best for the family as they move forward to their next new chapter.

A Closer Look at the Process

Here’s a look at what a typical mediation might look like:

  • Introductions: At the beginning of a mediation, the mediator generally introduces himself or herself to the parties. He or she will probably tell you about their background and career history (often mediators are attorneys or former judges), and how long they’ve been practicing. They may tell you about their experience as a mediator, particularly with the divorce process. The mediation will also usually provide an overview of what the mediation process will likely look like. Ideally, the mediator will also ask you and your spouse about your specific goals for the mediation.
  • Laying the groundwork: Your mediator will then likely explain the “rules” of the mediation process. This means explaining that: 
    • The mediator is not a judge. He or she doesn’t make decisions in your case, issue “orders,” or offer legal advice. 
    • The mediator’s job will be to help you and your spouse to make decisions and reach an agreement that works best for both of you. 
    • The mediator will be free to speak openly with both you and your spouse and to share information with both of you unless you have instructed otherwise. 
    • If you want to speak privately with your attorney at any time during the mediation, you can do so. 
    • The mediator will explain the confidentiality rules – namely, that what is said in mediation stays there. It won’t be used against you in a courtroom, and you can speak openly and honestly. 

After the mediator finishes with introductions and laying the groundwork, he or she may also want to discuss your role in the mediation. This is something that is very helpful to think through ahead of time. Some things you may want to consider are:

  • Goals: Spend some time considering what your ultimate goals are for the mediation. Some people go in intending to get as much as they can, or winning at all costs. Typically, that mindset isn’t conducive to compromise and to working together toward solutions that fit everyone’s needs. No one can set your goals for you, and no one will force you to enter into an agreement that you do not feel comfortable with. Talk with your attorney openly about what’s most important to you on the issues that matter, and work toward setting goals accordingly.
  • Choices: Mediation is all about choices. Your attorneys and the mediator can give advice and information, but you and your spouse will make the final decisions. Go into the decision-making process with an attitude of openness and willingness to work together toward finding the best solutions. Weighing the advantages of compromising and working together over battling it out in a courtroom, and realize that the longer the battle goes on, the more stressful and expensive it becomes for everyone. 

Assessing the Pros and Cons

As with almost any legal process where there are several potential alternatives, mediation has its pros and cons. Fortunately, the positives tend to far outweigh the negatives, which is why so many people choose mediation when considering how best to resolve the issues they face during the divorce. 

Mediation has many potential advantages when compared to traditional litigation. It is often less expensive, far less time-consuming, and offers the parties more privacy than they would have if they publicly battled their issues out in a courtroom. Perhaps most importantly, choosing mediation provides couples with the freedom and flexibility to decide their issues in a way that works best for their family. When you allow a court to decide your issues for you, that flexibility is lost, and in many cases, you’re left with a resolution that may be less than satisfactory to either party. Mediation allows couples to make their own choices – and ultimately, to often be more satisfied with the outcome of their case. 

On the other side of the coin, there is a potential downside of mediation too. Sometimes, mediation can unnecessarily prolong the divorce process. While this doesn’t occur often, it can occur in cases where there are just too many hurdles for the couple to overcome in terms of their situation and the dynamics involved. In certain instances, even with the best of intentions, some couples simply aren’t going to be able to cooperate and communicate effectively enough to find a middle ground during mediation. While you can’t always know this at the outset, in some cases, there are enough red flags to raise concern. If that is the case, then entering into a prolonged mediation may simply add extra cost and time to a divorce, and prolong the inevitable fact that the couple will end up addressing their issues in a courtroom any way. 

We’re Here to Help 

The articles in this section are here to help you take a closer look at what’s involved in a mediation, the advantages and disadvantages of mediation, what to expect as you contemplate mediation, and what other options you may have if mediation ultimately isn’t the best fit for you. We encourage you to look through these articles as helpful resources, but as with any legal matter, including mediation, there is no substitute for having the advice and assistance of a knowledgeable and experienced divorce attorney to help you through the process. 

Having the right attorney to guide you on this journey is essential, and it’s not a choice you should take lightly. At The Law Office of Dustin McCrary, we’re passionate about earning your trust, and providing the excellent representation you need and deserve every step of the way. We have successfully guided countless clients through the divorce process and onto a better and brighter chapter ahead, and we would be honored to do the same for you. 


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