An Overview of Divorce Mediation
Mediation is a means of developing workable arrangements for you, your spouse, and your children in a non-adversarial setting that takes into consideration the needs of the whole family. Couples coming to mediation are usually experiencing anxiety and stress, which cover other feelings including anger, resentment, rejection, disappointment, helplessness, and a sense of loss. The need most commonly associated with these feelings is for support, often expressed as "wanting somebody on my side." The greater a person's feelings of helplessness, the more that person feels he or she must have a strong ally.
It is not surprising, then, that lawyers are often perceived as the logical choice for fulfilling this need, and lawyers themselves often support this notion. When a party decides to fulfill the need for support by employing an attorney advocate, there is usually little or no awareness of how this may become the first move in an escalating competitive struggle between the parties that can become devastating both financially and emotionally. It is also a process in which each party denies his or her role in the destructive escalation, contending that the other party or the opposing attorney was responsible.
Most couples wish to avoid a destructive, competitive struggle, but our culture supports the idea that in these situations one party will win and the other lose. Thus each party becomes committed to "winning" in the belief that she or he is destined to either be a "winner" or a "loser." The same idea suggests that whatever one party receives is his or her gain and the other party's loss. The traditional legal process is automatically looked to as a means of "protecting" oneself against the losing and putting oneself in the position of being able to gain the maximum possible. The importance of maintaining a cooperative working relationship, even when there are children, is forgotten.
Divorce mediation offers a quite different approach to resolving conflicts between the parties. It asserts that, even though the parties have decided that they can no longer continue living together as husband and wife, they believe:
- Each is entitled to full respect as a person.
- Neither party has an investment in "winning" over the other in terms of money, property, or other conditions or the settlement.
- Each party is interested in surviving through having his or her own needs met to the extent permitted by available resources, and each is equally interested in seeing that the other party's needs are also met. (An agreement that does not address the needs of both parties is less likely to be honored than one that does. In fact, competitively reached settlement agreements have a very poor record for performance.)
- Difficult as it may be to acknowledge, there is still caring between the parties, even though it may not be of the kind that would support a marital relationship. It is especially important that both parties acknowledge this fact when they will continue to provide parenting for their children, even though they will no longer be married to each other.
Parties considering mediation as a means of reaching settlement are sometimes fearful about having to make decisions about financial matters in which he or she has had little or no previous experience. It is part of the role of the mediator to provide the general information needed to make such decisions and to help the couple explore all the legal and financial issues, options, and consequences. When necessary, the advice of other experts such as accountants, appraisers, and actuaries will be sought. Parties may also seek the advice of attorneys during the process.
It is important that both parties recognize that divorce can often result in a reduction in lifestyle. At the Family Mediation Center we make every effort to divide assets with the minimum amount of financial disruption and to put both parties in the best possible financial position in order to achieve for each party the maximum lifestyle that the available assets will allow.
Sometimes one party may want the divorce more than the other. It is understandable that the party who least wants the divorce is likely to feel cheated both emotionally and financially. The reluctant party may mistakenly believe that consent of both parties is necessary to achieve divorce and that, by withholding agreement to divorce, she or he can prevent the divorce or gain leverage in the negotiations. Rational as it might seem to require the consent of both parties, the law does not require mutual consent; nor does the law allow fault of either party to be considered by the court or have any bearing on the division of property.
Once the parties understand that if one of the spouse's wants the divorce, the divorce will happen, then they are in a better position to consider the four issues that must be resolved:
- Division of marital property
- Spousal support
- Child support
- Parenting arrangements