As depicted in the movies, pursuing a divorce can be emotionally punishing and financially taxing, especially when children are involved. While this can certainly prove to be true, life doesn’t always imitate art and not all divorces are created equal.
Like any life-altering decision, initiating a divorce proceeding should be carefully considered and preferably not entirely fueled by resentment, anger, and fear. Those who are contemplating divorce should first consult with a family law attorney to learn about the process, gain a better understanding of their rights under the law, and learn how to best protect those rights in the most cost-effective manner. Knowledge is power; so is the guidance of a competent and trusted family law attorney.
Of course, there are high-conflict cases where litigation is inevitable and the only means to an “end” is through trial, where the outcome is limited by the courts’ authority and determined by the idiosyncrasies of a presiding judge. Fortunately, this is more of an anomaly. The majority of cases settle prior to reaching the final date of trial; the question is when and how the settlement was reached. Was an agreement entered prior to the commencement of litigation, or was it reached on the eve of trial (after spending a small fortune)? While both scenarios are common, the former is far less painful and certainly more economical.
For most couples facing divorce – especially for those interested in minimizing both cost, and further pain and suffering – mediation can be an ideal alternative to litigation. It is a non-adversarial process, unlike traditional divorce as played out in the courtroom, in which lawyers represent spouses pitted against one another. In mediation, spouses work together with the help of a neutral third party to reach an agreement specifically tailored to their unique family circumstances, often including provisions that exceed the scope of the court’s authority. Lawyers can be an integral part of this process, but not always.
During mediation, the mediator provides neutral third-party guidance to facilitate communication between the parties. Addressing all issues arising out of the marriage – including but not limited to property and asset division, debt, alimony, physical and legal custody, and child support – the mediator remains impartial throughout the process and does not act as a judge or arbitrator. Also, because the process is entirely confidential, the mediator cannot be called as a witness if the matter ultimately proceeds to trial, nor can any issues raised in mediation later be used against a party in any capacity.
Generally speaking, the benefits of mediation are particularly helpful for parties with minor children, as the process is more conducive to parents maintaining a future co-parenting relationship. A mediator can assist the couple in communicating about important decisions, such as deciding when to sell the marital home, scheduling holidays with the children, determining summer camp obligations, and deciding who will fund a child’s college education. These decisions are often emotionally charged and frequently out of the court’s hands. If an agreement is reached during mediation, prior to the commencement of litigation, the parties can then proceed with an uncontested divorce. This is a relatively cost-effective process that can be finalized expeditiously.
Mediation can also occur after a party has filed for divorce. In fact, many courts require parties to participate in mediation, while the litigation is pending, to encourage conflict resolution without further court intervention. Whether mediation is court-ordered by or independently pursued by the parties, it is always a voluntary process with no mandate for resolution.
Unlike a trial, in which a judge makes the final determination, parties are able to maintain autonomy and have a final say. Each party is afforded the opportunity to walk away from the mediation, sans agreement. This is frequently referred to as “giving power” to the parties over their own divorce process rather than “rolling the dice” and resting their fate in the hands of an unknown judge.
Ultimately, the goal of mediation is for divorcing parties to avoid further litigation and come to a full and fair agreement that is mutually agreeable, without the pressure or influence of the mediator. When contemplating mediation, it is important to consider the power dynamic between the parties. For example, mediation is not typically appropriate, or otherwise ordered by the court, when there is a history or allegations of domestic violence. For mediation to be successful, both parties must be able to engage in open and honest communication. If one party refuses to engage in this manner, or is fearful of their safety, mediation will likely be futile.
It often takes multiple mediation sessions to reach an agreement, and it is recommended that any subsequent agreement be reviewed by an independent attorney prior to execution. Because it takes two people to reach an agreement, it sometimes just isn’t possible. Accordingly, parties considering divorce should engage family law attorneys who are as adept and skilled in the courtroom as they are in settlement negotiations such as mediation.
For more information, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Family Law Practice Group.
