It is no secret that more couples are taking control of their divorces and using mediation. Here are some reasons why using a third party neutral can be the smarter choice.
- Stress. Or, to be precise, less stress. In a traditional divorce, the big burley guy with chains would show up to the door and serve a Petition for Dissolution. Any sense of relief felt by the initial person filing was soon overshadowed by the angry filings of the respondent. And so it went back and forth. To the contrary, those who mediate before filing anything with the court already know how things will be resolved. By the time documents have to be provided to the court the matter can turn into a negotiation process and paper transaction rather than a contentious litigation. Further, a well-qualified mediator is skillful at dealing with parties emotions at this sensitive time. If necessary mental health professionals can also be a part of a mediation plan.
- Time. The Court process has statutes, rules and case law. Things need to proceed in an orderly and timed fashion. In mediation the parties have more control, including over how fast or slow things go. The parties can determine the pace that best suites them. They can cut to the quick and get everything out in the open right away. Documents that may have taken weeks to obtain are normally shared expeditiously. Or, if it the parties prefer, they can take extra time if they need it. Either way, the matter can proceed without having a schedule dictated by the court or the necessity of trial preparation time.
- Money. In a contentiously litigated case, when a party wants something, such as a copy of a document or permission to replace a vehicle, they have to ask their lawyer to call the other side’s lawyer, who calls their client…then the lawyer has to call back the first lawyer, who then calls their client. Also, there are motions and documents that the lawyers are court mandated to prepare. In mediation, there is a spirit of cooperation. Requests can be openly discussed. The parties can dispense with motions and briefs, reducing the need for ongoing payments to two lawyers and/or law firms. That is not to say that each side should ignore having lawyers altogether. They certainly should minimally have any agreements made reviewed by independent counsel prior to signing. However, lawyers in mediation serve as limited scope consultants, and there should be no need to provide a litigation retainer.
- Results. When the parties go to trial there are usually limited in time. Locally that means about a half day to a full day. It is rare to receive more time. In mediation, the parties can still avail themselves of the same benefits that they could receive in litigation, i.e. use of experts, independent legal counsel and to obtain a legally binding decision. However, in mediation the parties are able to more fully explore issues, even to the point where the parties are able to agree to things that a judge would not order, leading to a more creative, detail orientated and robust written agreement and court order. Indeed, the results obtained from mediation can be better than the parties would have received from a judge. An out of court solution can also be more confidential than a publicly litigated case.
- Children. Mediation could mean the difference between cooperative co-parenting and unhealthy parallel parenting. By mediating, the parties can normally spare their children from feeling alienated or stressed about the divorce. It is simply easier on children when divorce proceedings are more peaceful. Not only are they less contentious, but mediation is more confidential than a publicly litigated case. The parties may also have the time in mediation to be able to address issues in more detail, geared specifically for the family’s needs, than they would otherwise receive from a judge, resulting in a better parenting agreement. Studies report that the difference for children is not whether or not their parents stayed together but, rather, how matters were handled when the parties split. Overall, children benefit from seeing their parents cooperating, even when they disagree with each other.
6. The Future. It has been widely discussed that parties who resolve their divorce through mediation are less likely to ever need to litigate their family matter post- decree. They are also more inclined to able to maintain relationships with their former spouses and former in-laws, should they choose.
The overwhelming number of factors suggest that, as opposed to litigating, calling in a mediator to handle a divorce may be the healthier and wiser choice.