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  4.  | Eight Reasons Why You Should Have your Divorce Mediated

Eight Reasons Why You Should Have your Divorce Mediated

The decision to separate and divorce is one of the most difficult ones that any person will ever have to make. After that difficult decision is made, however, the couple then has to decide how they will handle their divorce.

There was a time when divorcing spouses would automatically hire attorneys to slug it out in court. However, in recent years, divorce mediation has grown to become a very practical alternative to the litigated divorce. Because mediation is a relatively new alternative to the court-oriented divorce, the question naturally arises of why a couple should consider it. The following eight points answer that question.

1. You and Your Spouse Create Your Solution

When a divorce case that goes to trial, a judge makes decisions regarding child custody, child support, spousal support and division of assets. The spouses have no reak control over the outcome of the trial. In a mediation, the spouses, with the assistance of the mediator, create the solutions to the issues in their case. Instead of handing over the decision making to a total stranger, the divorcing couple retains the power to fashion resolutions to their differences themselves.

The ability of the spouses to create their own solutions is beneficial in at least two respects:

  • Resolutions that are the result of an agreement, instead of a judge’s decision, are more likely to be followed by the spouses after the divorce is concluded.
  • In a litigated divorce, the law often limits the judge’s decision making power. However, in a mediation, the divorcing couple is free to do whatever they mutually agree to, even if it is not consistent with the law.

2. Mediations Usually Take Less Time Than a Litigated Divorce

The typical litigated divorce takes between one and two years to complete. Mediations, on the other hand, can be completed in as little as two months. This is because the spouses are in control of the process and are not limited by the time requirements that are imposed by court rules.

3. Mediations Are Much less Expensive than Litigated Divorce

The typical litigated divorce often can cost each of the spouses in excess of $20,000. A mediated divorce usually costs a fraction of a litigated divorce. There are several reasons for this:

  • Each spouse does not have to separately retain the services of a litigating attorney.
  • There are no court appearances in a mediated divorce.
  • The discussion of the marital issues takes place directly between the spouses. Attorneys are not necessary to serve as intermediaries for the transmission of information and negotiating positions.
  • In a mediation the parties do not have to pay substantial sums for the preparation of documents that are filed with the court.
  • Formal and potentially costly discovery procedures, such as depositions, interrogatories and demands for production, are not utilized or necessary in a mediation.

4. Mediation is Less Emotionally Taxing than Litigation

Because it is an adversarial process, a litigated divorce can be extremely stressful for the spouses. This is because the litigation process forces people to take hard positions to counter the other party’s claims. Moreover, much of the divorce process takes place in the pressure packed atmosphere of a courthouse.

In a mediation, one of the mediator’s tasks is to make sure that the spouses treat each other in a civil, courteous manner. Pressing marital hot buttons and making threats, which are common in litigated divorces, are simply not tolerated in the mediation setting.

In a typical mediation, there is no pressure placed on spouses to make important decisions in a pressure-packed atmosphere. This often happens when a divorce case goes to trial. While the trial is proceeding, it is often necessary for litigants and their attorneys to make split-second decisions on important matters. In the mediation setting, there is no pressure placed on the spouses to make any decisions. Instead, final decisions are made when each of the parties feel they are ready to commit to the resolution of an issue.

In addition, and unlike a litigated divorce, a mediation typically takes place in the mediator’s office, which is much more informal than a courthouse. In that setting, there are no rules which restrict the right of the spouses to disengage from the process, if they need to. Unlike a courtroom, where the parties are not free to come and go, during the course of the mediation session either party can call a timeout for any reason.

5. Mediation Enhances the Spouses’ Post-Divorce Relationship

The litigation process often forces people to say and write horrible things about the other spouse. The things that are said in the heat of a court battle can often make it difficult and even impossible for the spouses to communicate in a civil manner after the case is concluded.

Much like a bell that cannot be un-rung, once an accusation is made, it is often impossible for the other spouse to forget it.

In a mediated divorce, the mediator will normally ask the spouses not to bring the marital battle into the mediation room. The mediator will also impress upon the couple that the mediation process cannot progress unless they treat each other in a civil manner. This enhances the chances that the couple will have a cordial relationship after all of the divorce dust has settled. This can be particularly important where there the spouses have to regularly make parenting decisions regarding their children.

6. Privacy

Except for cases involving very sensitive issues, all divorce cases that are heard in court are open to the public. This means that total strangers can walk into the courtroom and hear intimate details about you and your family.

A mediation is, by definition, a confidential process that takes place in a private office. Unless agreed by the spouses, third persons are not allowed to be present in a mediation session. In addition, everything that is said in a mediation is considered a privileged communication. This means that anything that is communicated during a mediation cannot be disclosed.

7. Mediation is a Voluntary Process

By its very nature, a divorce mediation is a voluntary process. Each spouse must agree to start the mediation and whether that process continues is also up to the spouses. At any time, either spouse can terminate the mediation process without having to state any reason.

8. Mediation Sessions are Scheduled at the Parties’ Convenience

In litigated divorce cases, court hearings are scheduled at set times, such as 8:30 AM or 1:30 PM, on weekdays. Mediation sessions, on the other hand, are scheduled at times that work for both parties and the mediator. They can even take place after hours, on the weekend, or during holidays.