Divorce mediation has grown in popularity for the following reasons:
- More control over the process
- Save money
- Faster and less time-consuming
- More effective communication
More control over the process
People are learning what lawyers have long realized – fewer than one out of ten cases are solved by a judge. Settlement is much more common than trials. Despite the prevalence of settlement, the court system and much lawyering are built around an adversarial mindset that permeates attitudes, habits, and institutional supports. Lawyers are increasingly working with their clients to keep control and not surrender decision making to a third person until all reasonable efforts to settle the matter have been exhausted. If the parties can settle a problem with one phone call, nothing more needs to be done. If one short phone call won’t do it, perhaps a second (or third) longer call may be necessary. If the matter remains unresolved, perhaps a meeting over a cup of coffee will settle it. If not, the next step might be writing a letter(s) either to resolve or to defer a resolution of the problem. These steps may be taken with or without the guidance of a lawyer.
Once couples learn about divorce mediation, they often want to try it solely to save money. To determine the extent of cost savings (if any) in a particular case, your lawyer and you must consider the nature of the issues, the emotional and communicational dynamics involved, the use of lawyers and other experts in the process, the timing of the mediation, the cost of the mediators(s) selected, and the process being used. Such a discussion must also compare mediation with costs incurred in both litigation and direct negotiation.
People treat financial strains or career disasters as private concerns, as are emotional and social troubles of family members. So it is natural for divorcing couples to be fearful of how outsiders will react to their breakup. Many even stay in arid, unhappy, or abusive marriages out of fear that family problems will become public gossip.
Divorce allegations written or spoken in court almost always become part of the official record and are accessible by the public. Most states require a filing in the public court system to obtain a divorce or enforceable orders, so divorcing parties are forced by law to announce their family troubles publicly.
In many states, the opportunity to seal court records is limited, making every document filed in court available in perpetuity for inspection by any member of the public (plus press and television), including the children, grandchildren, and great-grandchildren of the divorcing couple. Testimony concerning illegal or immoral acts, financial manipulation, career success or failure, or emotional well-being are remembered.
Faster and less time-consuming
Many conflicting pressures come into play in determining an appropriate time for resolving family law problems. Until relatively recently, long waiting periods for divorce were seen as helping couples sort out emotions and take every opportunity to save their marriages. Even with the trends of no-fault legislation and shorter waiting periods, many couples view long waits to obtain interim court hearings or trial dates as a way to prevent raw and impulsive decisions immediately following a separation.
Mediation can, however, be compatible with these valid concerns. Couples who choose to have a temporary respite following the separation decisions can delay the commencement of mediation until both are emotionally ready to begin. Also, the parties can (and should) use the mediation process to obtain necessary information and input from experts to make informed decisions. Informed client consent means having sufficient information to make good decisions.
One attraction of mediation for many clients is that they can control the timing of the process. If they wish to wait week, months, or even years following the separation, they can do so. If they wish to use mediation while still in the same home to plan their separation, long before any court involvement has commenced, they can do so also. Parties can choose to make initial interim agreements in mediation and then put the matter on hold for months until they are ready to start discussions for a final settlement.
Mediation affords the parties the opportunity to sit down together with their mediator(s) within days (schedule permitting) or weeks at most. The entire process can be over in hours in simple matters or in a few weeks for more complicated issues if the parties are willing to focus on their mediation and do the necessary work. This quick resolution allows people to move on with their lives in a relatively short time. While statutory waiting times to terminate marital status are relatively short, it often takes six to twenty-four months to obtain a trial date for other unresolved issues.
More effective communication
Parties often divorce due to communication problems. Settling divorce issues through litigation or direct attorney negotiation rarely improves those dynamics – actually they often get worse. Most mediators are committed to using preventative education through tapes, books, parenting guidelines, and role-playing to ameliorate destructive behaviors and support positive efforts to improve. This communication work (listening skills, acknowledgment, reflection, structuring communication to minimize disaster) can pay dividends in more healthy interaction that in itself may keep the family away from the courthouse. More about divorce mediation, contact a local mediator.