When an intimate relationship is ending, perhaps what is most crazy-making is feeling that life is out of control. The unknowns of the future, for oneself and for children, raises anxiety not before experienced. For some, depression follows, for others, sleepless nights or an inability to move forward.
Taking back control, in a protective setting, along with the guidance of a skilled mediator, can restore calm and provide a clear path for moving forward.
How Does It Work?
Whether divorcing parties have taken an adversarial stance or are determined to remain amicable, the complexity of the issues that must be resolved is daunting. Too often one to one discussions arouse anger and blame, or just drift.
The impartial mediator, meeting initially with wife and husband together, takes charge of the structure of the process. At the outset the parties are called upon to talk about the goals they each hope to achieve in designing the terms of their Separation Agreement, for themselves and for their children. Even the concerns of adult children may be considered, for mediation allows for decisions that Courts cannot even address. Conversations that were difficult before now become productive.
This stage of the process is followed by clearly identifying all of the issues that must be resolved. A skilled mediator with a legal background, makes sure that no decision required by law is omitted or misunderstood.
The next task is to create options to meet the interests of both parties in resolving the issues identified. These are developed by discussion with the parties and enhanced by the mediator’s experience with many others who have faced similar concerns.
Then the negotiation starts in earnest. The conversation is facilitated by the mediator who usually meets with the parties together, but from time to time meets with them individually as well. It’s a balancing act with compromises made along the way, until both parties can say: taking everything we’ve discussed, and our review of all the information gathered, I find the terms of this agreement acceptable to me.
Throughout the process, the mediator keeps track of all decisions made along the way, and once these are reviewed with the parties, and amended if necessary, the mediator drafts a Memorandum of Understanding for review and final approval by the parties. These are the terms that are then converted by selected legal counsel into all the legalese and forms required by the Court. How long does this all take? (click on FAQs above).
In some respects, the above description is necessarily simplistic, as each couple presents unique circumstances to be addressed. Experienced mediators adjust the process to serve the needs of the parties as they evolve.
The Role of Attorneys
Common wisdom suggests to many that divorce lawyers will just make a bad situation worse and drain away needed savings. Although this often may be the case, it need not be. It is optimum to start the mediation process before retaining counsel, for the mediator can provide the names of lawyers proven to help parties work toward settlement, rather than those who wake up in the morning itching for a fight. On the other hand, even if lawyers have already been engaged, mediation, rather than lawyer to lawyer negotiation, always remains an option.
The mediator’s assessment of the complexity of the issues to be faced will further lead to the decision of just what type of legal assistance may be needed. Some parties consult with counsel early on and see them again after all decisions are made and say: be my scribe and write this up. Others feel the need for more frequent contact with counsel along the way. It is a very individual matter. The lawyer/mediator, though experienced in divorce law and called upon to explain it in a generic sense, will not provide legal advice, as such, to either party.
There is no legal requirement that attorneys be hired, but although participants in mediation make their own decisions, they should be well-informed decisions.