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How Does Divorce Mediation Work?

Will divorce mediation work for me? Mediation can be beneficial in many divorce cases, including those involving complex issues, because it is a way to avoid the headaches and high cost, financially and emotionally of fighting in court.  Many mediators are fully capable of handling complex cases involving numerous property issues.  Also, a mediator may work with other professionals, such as an accountant or appraiser, to ensure that all aspects of the case are handled correctly. Mediation typically takes less time than litigation and usually does not involve extensive legal fees. Mediation can also be helpful because it approaches problem solving and dispute resolution from a more cooperative place, as opposed to an adversarial, combative place. In mediation a couple is encouraged to cooperate and reach their own solution, rather than just accept what the judge dictates. Mediation is therefore both a solution to the present dilemma of divorce and the first step forward in building a cooperative post-divorce future.

The key to a successful mediation, however, is this: both spouses must be on the same page and of a similar mindset as to what they want and expect from the proceedings when entering into mediation. Too often one party agrees to mediation only to approach that process from the standpoint of simply trying to convince the mediator to join with them and convince the other side to go along with what they want. That is not compromise or settlement; that is simply bullying, and that will not work in this (or any) setting. This is not to say that the spouses must enter into mediation already in agreement; what it means is that both spouses must be willing to see the other person's side, see what they want and be willing to work with the other side to achieve a compromised agreement. Too often a party to a divorce is unwilling to budge from their demands, and all that does is put the other side in the position of being the only one to compromise their position. That is not a mediated settlement; that is one party giving in to the (often unreasonable) demands of the other side, and that is often simply a continuation of the dynamic in the relationship that lead to the divorce in the first place.

Assuming both sides understand these requirements of successful mediation and are willing to compromise their positions when need be, mediation can be used in a wide variety of divorce cases, very often with great success. As stated above, however, mediation is not for every divorcing couple.  If one party is focused on revenge or insists on hiding assets or income, mediation will not work. Spouses who cannot remain calm probably cannot work constructively toward resolution.  Also, mediation is usually not the best route for those who have been in an abusive relationship. An abusive spouse may have difficulty cooperating with an ex-partner, and may believe that force can be used to reach a settlement.

If the case and the parties are right for mediation though, it is an excellent means of avoiding the high cost of a litigated divorce.Take care to choose your mediator with the same due diligence and investigation as you would your litigation attorney. In fact, due to the absence of a judge overseeing the proceedings it can be argued that a more experienced attorney/mediator is the best way to go. Finally, do you need an attorney when you choose to mediate rather than litigate your divorce? Not always, but the best advice in this context is this: if you can afford legal counsel you should definitely use it, just as you would any other professional tending to the most important areas of your life.

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William A. Feinberg 1928 - 2001

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