Mediation is one of the many ways couples can proceed when getting a divorce. In mediation, the couple meets with a specially trained, neutral third party called a mediator. Mediation is done in a private setting, which is confidential. The proceedings themselves are not public, however, the agreements made during mediation may become part of a final divorce decree, which is a public document. Mediation can occur when both parties represented by counsel. Alternatively, the parties can choose to attend mediation together without separate attorneys. Successful mediation occurs when the parties resolve the issues in their divorce.
Understanding What a Mediator Does
A mediator works to address the relevant legal issues surrounding the divorce. All parties have a chance to be heard. The parties are encouraged to find common ground on these issues – sometimes in creative ways that may not be standard but work for a particular family. Mediators do not provide legal advice, they do not judge the parties or the parties’ positions, and they do not bring their personal opinions into the discussion. Mediation can address any topic relating to your divorce. It can include:
- Parenting time;
- Division of property;
- Division of debts; and
- Tax issues.
In certain cases, couples can work together to resolve important divorce-related issues without each person hiring separate legal counsel. Sometimes, the couple can work together with an experienced mediator to resolve divorce issues.
Steps to a Successful Mediation – Actively Participate
During mediation, after hearing the concerns of both parties, the mediator works with the parties to come up with a solution that will work for both parties. Obviously, if one party refuses to discuss alternative solutions, the mediation has very little chance of being successful. Instead, approach the mediation with an attitude of willingness to discuss alternatives. Flexibility and a willingness to think outside the box can go a long way towards resolving issues.
Steps to a Successful Mediation – Compromise
Rare is the divorce where each party gets exactly what they want, and absolutely no conditions they don’t want. Instead, in most divorces, whether resolved by litigation, negotiation, or mediation, are the result of some give and take. Being willing to compromise achieves a few different purposes, including:
- Compromise that resolves an issue prevents judicial intervention. A judge may make a decision you find even less tolerable;
- Compromise on one issue by one party can result in the other party agreeing to compromise on a different issue;
- Coming to a solution both can live with, but neither loves, can provide some common ground.
Steps to a Successful Mediation – Be Respectful
The purpose of mediation is to hash out legal issues surrounding your property and your children. It is not the time to hash out emotional issues about trust, commitment, reliability, etc. Even if you have been very hurt by the facts and circumstances surrounding the divorce, it is important to be respectful when discussing the allocation of property, the division of debt, and the care and custody of the children. Being respectful contributes to the potential success of the mediation. Similarly, being disrespectful can contribute to the demise of the mediation without a successful resolution.
Steps to a Successful Mediation – Plan Ahead
As much as possible, plan ahead so that you address potential future disagreements now. If you have a family reunion in New Mexico once every five years, make sure to address the custody of the children during that time frame now. Even if your children are small, consider addressing things such as who will pay for extracurricular activities as they grow, how vacations will be handled in relation to the custody schedule, and holiday scheduling. Is Mother’s Day important to you? Your birthday? The children’s birthdays. Consider addressing those issues now, while before the mediator. Don’t wait until after the mediation is resolved to remember those issues.
Steps to a Successful Mediation – Avoid Behaviors that Lead to Failed Mediations
Every mediation is different. However, there are some common themes that tend to present themselves in situations where mediations fail. Parties should review the list of things that lead to failed mediations and avoid them at all costs:
- A negative mental attitude – saying things such as, “This will never work,” tends to have a negative impact on the potential success of the mediation.
- An unwillingness to be flexible – approaching mediation with one “right way” to resolve a divorce issue will only work if the other party agrees there is only one “right way,” and further, that your “right way” is also their “right way.”
- Bad faith – attempting to deceive the other party or the mediator is never a good idea. It creates distrust. Further, this often results in protracted litigation, as the other party rightly wonders what other secrets exist.
- Unrealistic expectations – except in very specific circumstances involving serious criminal conduct, it is unlikely one party will receive complete custody and parenting time, with the other parent not allowed to see the children. Having unrealistic expectations can result in an unsuccessful mediation.
When a couple approaches mediation with the intention of resolving the issues related to their divorce, are open and honest with the mediator, adopt a tone of respect, and plan ahead to address rare or future issues, and avoid the things which can result in a mediation failing, mediation is an excellent way to resolve a divorce.
If you are considering divorce, and think mediation might be right for you, contact the firm of Fait & DiLima. Both partners, Dorothy Fait and Marjorie DiLima are experienced mediators in the state of Maryland. You can schedule your mediation to work to achieve compromises on issues relating to the division of assets and debts, alimony, child support, parenting time, and other divorce issues. For motivated couples, mediation resolves issues more quickly and at significantly less expense. This allows people to move forward more quickly. For families with children, working together in mediation, achieving the common goal of resolving the issues associated with the divorce quickly and in a cooperative manner leaves the family stronger than typical divorce litigation.