Family and Divorce Mediation: Why, When, and Who

[10.19.2021]

WHY: Mediation is a smart and easy alternative to going to court with a soon-to-be former spouse or co-parent and fighting the War of the Roses.

The parties are in control of the process (with the assistance and experience of a professional mediator), and are almost always able to save time and money rather than paying two lawyers fighting over money and/or parenting time. The approach is a cooperative one where the parties agree on a resolution with and on their own terms that sometimes a Court or Judge can not order.  Parties who choose mediation are able to resolve their issues early on in their separation which is long before a Court hearing would be held. They also share in the cost for the mediator rather than fees for two separate attorneys.

WHAT: A mediator is usually an experienced Family Law attorney or psychologist who assists two parties going through a separation or dissolution of a marriage.

The Mediator does not make any decision but helps the parties focus on common interests and goals in order to help them achieve a reasonable division of assets, amount and terms of support, and parenting plan. In many cases, the Mediator can also draft the Agreement which can be submitted to a Court.  A Mediator is also able to explain the process to the clients – forms needed, the requirements of separation and filing, and the length of time needed to go through the Court proceedings and finalize the divorce. The professional is not able to give legal advice to either party, but an attorney-mediator can bring her experience to suggest other topics and issues that a lay person may not think of initially such as maintaining life insurance or filing joint or separate tax returns. A mediator is able to share experiences and solutions that may have worked for other separating couples.  They can raise scenarios or issues that may arise in the future (one parent wants to move out of state, another party may remarry, or one loses a job or income) so that the parties can calmly discuss alternatives and guidelines because an emotional crisis ensues.

WHEN:  Anytime before, during, or after spouses or parents have separated, is a good time for them to consider mediation.

Some may be in denial, or experience anger or depression, and have difficulty accepting the dissolution of their relationship.  It is not unusual for one party to not be quite ready for mediation early on in their separation.  After a few months (and sometimes after large litigation fees) they may be more amenable to reaching an amicable agreement with the former partner.  Another benefit is that the parties can agree to return to mediation at some point in the future to address matters such as modification of alimony or child support, or medical or educational changes for the children.

WHO: Mediation is helpful and productive in many, but not all, cases.

Not everyone is a candidate for mediation when there are significant power struggles, high levels (s) of hostility, mental illness, or domestic violence. However, it can work for most couples ending their relationship with each other and who want or need to be able to communicate about their children, or because they choose to be civil and remain friendly with each other, family members and friends. They also are happy when they can save money which is preferably used for their own expenses or children’s needs in the future.

At WhitbeckBennett, we have several partners and associates with extensive litigation experience. If you need help with an upcoming deposition, give us a call to set up a consultation.

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

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