If you find yourself contemplating divorce, you may have arrived at this page with many questions about the process. That’s understandable. Often, one of the most frequently asked questions by those who are at the beginning of their divorce journey is – how do I eventually resolve all of the issues that my spouse and I might confront during the divorce process?
It’s an important question to ask. After all, most people who find themselves facing a divorce want to address their issues and move forward as quickly and effectively as possible, to save time and money, and minimize stress and difficulty. For those reasons, many people choose mediation as an option to resolve their issues.
If you’re wondering whether or not mediation might work for you, let’s take a closer look at the process together.
What is Mediation?
Essentially, mediation is a process by which couples who are divorcing seek to resolve the issues between them outside of a courtroom. Typically, this includes matters of child custody, child support, property division, alimony, and any other matters of importance to the couple and to their family that might arise during the divorce.
During the mediation process, a neutral, objective third party, the mediator, works with the parties and their attorneys to find solutions and reach agreements on these important issues. Often, although not always, a mediator is a retired judge or an attorney. Ideally, the mediator that is chosen will have training in dispute resolution and cooperative negotiation techniques.
The mediation generally takes place in a casual, comfortable setting chosen by the parties, where everyone can feel at ease. The parties may meet on one occasion, or on more than one occasion depending upon the complexity of the issues they have to face. Ultimately, the goal is to find solutions for the issues that satisfy both parties and to draft and sign an agreement that comprehensively addresses those matters.
What Are the Steps of the Mediation Process?
It’s important to keep in mind that there is no “standard” mediation. The process may be slightly different depending on the state you live in, the nature of your issues, and any other unique circumstances that may apply. Generally, however, there are a few standard steps in most mediations. These include:
- Introductions: In this initial stage, the parties meet the mediator, learn the general procedures that the mediation process will follow, and determine the issues that will be addressed. The mediator may also present an agenda and allow the parties to ask any questions that may be necessary.
- Gathering information and outlining issues: At this phase of the process, the mediator will likely ask questions of the parties, review the information they have provided, and help the parties to work toward clearly defining and outlining the issues they want to address as part of the mediation process.
- Negotiating issues and reaching resolutions: At this stage of the mediation, the parties do the work of trying to find common ground and reach solutions that work for everyone involved. A mediator is extremely helpful in this stage in helping the parties to cooperate and communicate effectively and to work toward reaching ideal resolutions as amicably and effectively as possible.
- Drafting a settlement agreement: If the parties have successfully found solutions for all of their issues, they’ll be ready to move toward the final step of the mediation process, which is setting forth all of their issues in a settlement agreement. This agreement will ideally outline the terms the parties have discussed, and how they plan to move forward. After the agreement is drafted and signed by the parties, it will be ready for approval by the court.
As noted, every mediation process is slightly different. Yours may include some additional steps, depending upon your circumstances. As a result, talking to a knowledgeable and experienced attorney regarding what mediation might look for in your case, in particular, is always helpful.
What Are the Advantages of Mediation?
For most couples, mediation has far more advantages than it does disadvantages. Some of those advantages include:
- Less time-consuming than courtroom litigation: In the vast majority of cases, mediation is far less time-consuming than litigation in a courtroom, for any number of reasons. Typically, courthouses are busy places. Judges often have many, many cases at once. It can take time to get on the court’s calendar and be heard. It’s also time-consuming for attorneys to continually have to draft motions and arguments and repeatedly appear before the court. Even after all of this, the court has to take time to decide the issues and render its orders. Cumulatively, a lot of time is spent in court that could be saved through effective and efficient mediation.
- Less expensive: For many of the same reasons set forth above, mediation is also often less expensive than litigating issues in a courtroom. Typically, mediation is less adversarial, and the parties can work toward and achieve a resolution of their issues in less time. As a result, the parties usually don’t have to pay as much in attorney fees or court fees and can keep that money in their pockets instead.
- More confidentiality: This particular aspect of mediation is often very appealing to many couples. Most cases that are litigated in a courtroom are considered matters of public record, with very limited exceptions. As a result, battling issues out in a courtroom can often mean that very private matters become all too public. Many couples want to avoid this, and understandably so. Mediations are typically private – in fact, parties often sign a confidentiality agreement as part of the process.
- Greater freedom and flexibility: This final advantage is certainly not least. Mediation is chosen by many couples primarily for this reason. The truth of the matter is that no matter how well-intentioned a judge may be, he or she will never know your family as you do. Nevertheless, when a court issues an order, that order is binding. While this may be necessary and the best path forward in some cases (as we’ll discuss below) for the most part, couples choose to resolve their issues in a way that works best for their family.
These are only a few of the many potential advantages that the mediation process offers. As with so many legal matters, however, it is certainly not a one-size-fits-all process. In some divorces, for a variety of reasons, mediation may not be the best choice.
Are There Any Disadvantages?
Like any legal process, with advantages, come some disadvantages. In truth, most people who go through a divorce feel that there are many more advantages to mediation than there are disadvantages, although sometimes there are a few. Some of these include:
- May not be cost-effective in certain situations: As we’ll discuss later on, in some cases, for any number of reasons, a mediation fails. It may not be the fault of any one party – it’s just simply not possible to work through the issues and find solutions that work for everyone. In this case, the parties will have to pursue another option to address their disagreements. This may mean trying another out-of-court resolution option, or it may mean going to court to litigate the remaining issues. Regardless of which next steps are chosen, additional costs will be incurred.
- Only works if parties are willing to compromise: This may seem obvious, but it’s a point worth noting. While mediators are often well-trained and skillful at their profession, they aren’t judges. Ultimately, they have no authority to make decisions for the parties or to direct the parties down one path or another. For this reason, the parties will have to be willing to compromise, cooperate and communicate. Without doing so, mediation is unlikely to be effective, and another option will need to be pursued.
Again, it’s worth keeping in mind that there aren’t many downsides to mediation. For the huge majority of couples, attempting at least one out-of-court resolution method is certainly worth a try. It may not succeed, but making the effort can often end up being surprisingly effective.
What Happens if the Mediation Process Fails?
In some cases, the mediation process doesn’t succeed. This can happen for any number of reasons, and even despite the best intentions of the parties. There may be an unhealthy power dynamic between the couple that prevents the mediation from being successful. In other cases, one party may struggle with an addiction or mental health issue that prevents he or she from being able to communicate and negotiate effectively. In still other cases, there may have been some marital misconduct or prolonged period of unhappiness that leaves the parties with too many difficult emotions to effectively work together toward resolving their issues.
Regardless of what causes the failure of a mediation, the good news is that the parties always have the option to try again, if they choose to. If not, they have other options available, including trying other out-of-court options for resolving their issues, like arbitration, or collaborative law. And ultimately, it is also always an option to go to court and attempt to resolve any issues that remain.
Sometimes, for any number of reasons, having a court address the issues may truly be the best option. A courtroom setting can be adversarial, but it can also be highly effective for certain couples. As you attempt to determine which option might be best for your circumstances, talking to an attorney who knows and understands the law is always advised.
Call The Law Office of Dustin McCrary Today
Wherever you find yourself in the divorce process, you deserve to have an attorney on your side who will walk with you and guide you through complex legal matters with the expertise and knowledge you need. At The Law Office of Dustin McCrary, we’re here to do exactly that. We are passionate about helping each and every client find the best path forward for their circumstances. While it’s true that divorce means the end of a marriage, it also means the beginning of a new chapter. We’re here to help you turn the page. We’ll walk with you on this journey every step of the way. We’re here for you. Call us today. We look forward to speaking with you soon.