Divorce/Child Custody Mediation

Mediation is an alternative to going to court or having the lawyers of separating spouses negotiate an agreement. Its purpose is to assist spouses to resolve their differences and design their own solutions to their unique problems. It is also hoped that mediation will help to discourage litigation and its heavy emotional and financial costs.

·With appropriate mediation, a couple seeking dissolution of their marriage can exercise a great deal of control over the divorce process. This is in marked contrast to divorces where the process is mostly attorney driven. A single negotiation handled through the couple's respective attorneys could take as long as a few weeks, while the same negotiation in mediation could be fully resolved in less than an hour.

Some important notes:

Either spouse can choose to leave the mediation process at any time if they feel it is not working.

Mediation does not take the place of legal representation. Participants are encouraged to maintain independent legal advice throughout the process and must review the final mediated agreement with their lawyer before signing.

Benefits/Advantages of Mediation:

· Self determination
· Emphasis on cooperation and full disclosure
· Improved communication
· Focus on present and future resolution
· Best interests of children AND family
· Less costly in money, time and emotions
· Confidential
· Effective - agreements reached in 60-90% of cases
· Commitment, less return to court

Property and Support Questions:

· What is considered property? (over 30 items in list)
· Marital vs. Non-marital property
· Who will stay in the family home?
· How is property valued? (over 7 different ways)
· How will everything be divided?
· What about spousal maintenance? (how much? - how long?)

Parenting Questions:

Mediation is a way for separating spouses to settle together issues such as:

· With whom will the children live? (physical custody)
· Who will make the day-to-day decisions about their lives? (legal custody)
· When can the other parent spend time with them?
   (Kids are not getting divorced from parents.)
· Who pays child support? How much?

The Mediator's Role is to:

· To make sure that a balance of power between the parties is maintained. This is of prime importance if the negotiation process is to be fair and equitable.

· To help the couple to explore, understand and explain to their spouse their needs and concerns in a respectful fashion.

· To help people work together to solve their common problem, using each other as a resource.

· To help each parent explore, understand and explain to each other their views of the children's needs and plans for their care.

· To help each parent understand the roles they'll have in the parenting plan for the children.

· To assist each parent to develop creative, but practical, ideas to resolve differences in their plans for the children's care.

· To suggest possibilities if an impasse is reached, but not to make recommendations.

· To diffuse conflict between people and focus the negotiation in a constructive manner.

Mediator's Responsibilities:

· A mediator's responsibility is to manage the proceedings by acting as a facilitator. The mediator ensures that the issues in dispute are clearly defined and that all the interests are dealt with. Mediators manage conflict and help to keep people focused both on the issues in dispute, and on possible solutions.

· When the mediation process begins, people sometimes have difficulty voicing their opinions. Sometimes people have not talked to each other for a long time and may not have seen each other since their separation. The mediator begins immediately to establish a rapport with the parties and to ensure that they are at ease. A mediator begins a businesslike and respectful pattern of discussion between people. As communication builds, the involvement of the mediator may diminish. If communication breaks down, the mediator will intervene to open up the discussion again.

· Sometimes people talk, but do not fully understand each other. They may be unaware of certain facts, or they may see the same facts in different ways. The mediator will often rephrase what is being said to ensure that both parties are understanding each other.

· The mediator may act as a translator of information or a resource person. The mediator may direct people to other resources such as lawyers, accountants, or other professionals to make sure they are fully informed. The mediator may also recommend that people educate themselves with respect to relevant issues such as child support guidelines or the developmental needs of children at various ages. The mediator might suggest parents attend classes that would aid them in co-parenting.

Creating Options:

The mediator can see when people are stuck on a single solution (or way of viewing the problem), which is leading to a stalemate of positions. At this point, the mediator may have to propose options to the parties. It is not the mediator's job to decide on a solution and sell it. The mediator will only make suggestions. It is the parties who must agree on the solution. It has been shown that the agreements that tend to hold together over time are those that the parties arrived at through their own effort in negotiations.

Agent of Reality:

As the possibility for settlement nears; the mediator must act as an agent of reality. The mediator will help the parties to assess the benefits and drawbacks of continuing or resolving the conflict. The mediator might play the devils advocate by suggesting possible scenarios that could cause problems after the divorce. By working them out beforehand, future disagreements could be eliminated.

With the help of a competent mediator and the willingness of the couple to negotiate in good faith, the divorce process can be one of healing. Done with great efficiency and in a timely manner mediation can create a "designer" divorce at a great savings of the couples financial resources and leaving their self esteem intact. Parenting issues, which are often highly charged with emotion, can be worked out with the best interests of the family met.

With mediation the need for each of the parties to be represented by an attorney is of great importance. The function of the attorneys is no longer as intermediaries in the negotiation process but rather to assure that their clients best interests are being served. At the end of mediation the mediator will draft a Memorandum of Agreement to be signed by the parties. This will be sent them to their attorneys to be put into legal language and submitted to the court. The divorce decree will come in the mail and the couple may never have to go to trial. This is a win-win solution to a difficult and often painful process.

To learn further how mediation might benefit you, please contact us.