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4 Mediation Benefits to Consider

on Nov 29, 2017 in Divorce

If you are facing a divorce, you have a lot of choices to make.  Once you decide divorce may be the right solution for you and your family, your first task is finding the right divorce attorney.  After that has been accomplished, you will be asked to identify and list all property, discuss the needs of the children, review retirement accounts, and a host of other details.  At some point, you may be asked to consider mediation.  Of course, there are many benefits to mediation.  A few of these benefits are discussed below.

Mediation is Not Binding

If you and your spouse cannot agree on property division, alimony, child support, and parenting time, you can go to court and litigate any or all of these issues.  If you do this, you and your spouse, through your lawyers, will take testimony, offer exhibits, and submit proposed findings to the judge.  The judge will take the matter under consideration, and eventually issue a ruling.  This ruling binds the parties.  Without a legal basis for appeal, the ruling will stand.

Mediation, on the other hand, is not binding.  This means the parties have nothing to lose.  Additionally, it situates the parties to gain a great deal, avoiding the time, expense, and stress of a trial.  In mediation, the parties, along with their attorneys, meet with a third party who is neutral.  The goal is to negotiate a resolution by agreement, rather than leaving the decision to a judge.  In mediation, those issues the couples agree to become part of the resolution.  Those the couples don’t agree on remain on the table for potential litigation.

Often, participants in mediation resolve all of the legal issues that accompany every divorce.  Sometimes, however, couples find they can resolve most of their issues, such as child support, parenting time, and property division, but one or more issues, such as alimony, remain.

Mediation is Cost Effective

Rarely is mediation entirely unproductive.  Any issue resolved in mediation is an issue that won’t be subject to litigation later.  Litigation of each issue takes time and costs money.  These costs include locating and interviewing potential witnesses, preparing witnesses for testimony, preparing to cross examine the witnesses the other side intends to offer, creating exhibits, and creating cogent arguments for the judge.  Additionally, attorneys frequently write proposed findings for the court.  All of this takes time before the attorneys even walk into the courtroom.  In court time includes time for arguing motions, opening statements, taking witness testimony, including direct and cross exam, and responding to the specific concerns of the judge.

Mediation also takes time, however, it takes considerably less time than litigation.  The process is significantly less formal.  Additionally, parties approach mediation as an attempt to come to agreement, not “to win.”   This common goal tends to significantly reduce the amount of time and resources dedicated to resolving the issues of each individual divorce.

Mediation is Private

Litigation takes place in an open courtroom.  Anyone can attend divorce proceedings taking place in court.  A court reporter is present, making a complete and accurate record of everything said during the proceedings.  This court record is available for purchase by anyone who may have an interest in the proceedings.  Areas which provide a basis for divorce in Maryland, and may be subject to litigation could include:

  • Infidelity;
  • Abandonment;
  • Criminal conduct;
  • Mental illness;
  • Chemical dependency;
  • Cruel treatment;
  • Child abuse; as well as
  • Spousal abuse.

Topics which may be litigated during a divorce include, but are not limited to:

  • Income of the parties;
  • Retirement accounts;
  • Personal property, including vacation properties, boats, cars, jewelry, family businesses, stocks, bonds, etc.;
  • Issues involving parental fitness;
  • A spouse’s ability to become self-sufficient;
  • Special needs of the children; and finally,
  • Any other need of either party which may have a place in divorce proceedings.

These issues can be addressed privately in mediation.  Unlike in litigation, in mediation, an honest and open discussion about the concerns of each party can lead to resolution without creating a permanent public record.

Mediation Allows for a Chance to Engage

Litigation is, by design, adversarial.  In litigation, each side presents evidence they believe is favorable to their position, or detrimental to the other side’s position.  There is no conversation or give and take.  Mediation, on the other hand, allows the parties to address concerns both specific and global.  Each party expresses their wants, needs, and concerns to the third-party mediator.  The mediator listens to the concerns and seeks to bridge gaps and find compromise.

After discussion, parties may be able to find their way to compromise on any number of issues.  Everything is on the table, and open to resolution.  In litigation, the attorneys present evidence in an orderly fashion, asking questions and objecting to the opposite side’s questions.  In mediation, the discussion may start with child support obligations, morph into a discussion about parenting time, touch briefly on taxes, and then return to child support.  Finally, because mediation is not bound by the rules of procedure and rules of evidence in the same way litigation demands, the approach addresses concerns in a more global manner.

If You are Considering Divorce

If you are considering divorce, you need a qualified divorce attorney on your side to advocate for you.  Whether you ultimately decide to explore mediation, a collaborative divorce, or litigation becomes your only option, at Fait & DiLima, our family law attorneys have the experience you need to navigate through the storm.   Our attorneys dedicate their practice to family law and divorce.  We have the experience needed to help you make important decisions about your divorce as well as your life going forward.  Contact us for a consultation.  Together, we can make a plan that suits the needs of you and your family.

 

Additional Reading

Collaborative Law: A Different Way to Divorce