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With the proper mediator facilitation in the divorce mediation process, nearly all divorcing parties are suitable candidates to enter this negotiation process leading to a legal divorce. Exceptions would be those clients who are seeking revenge, where there is a history of domestic violence or where coercion and intimidation are prevalent. Other than these difficult circumstances, the experienced divorce mediator should have the skills to calm the roughest waters in the divorce mediation process.
In divorce mediation, a single professional, the attorney-mediator acts as a neutral facilitator in helping the divorcing parties through the settlement negotiation. The role of the mediator is several-fold:
- to be certain the parties have a full and complete understanding of the law as it applies to their situation;
- to advise the parties of their rights and responsibilities under the specific circumstances presented
- to accurately assess the assets and obligations and discuss options and possibilities for their division and distribution
- To help the parties think through a comprehensive parenting and financial support plan for the children where minors are involved
- to create a process for assessing and understanding the needs and abilities of the parties where spousal maintenance is an issue
When appropriate, outside professionals such a residential a appraiser, business valuator or and child specialist is brought into the process as members of the mediation team. In mediation, unlike the adversary litigation model, one expert is used to work on behalf of both parties. In the litigation model, each expert traditionally hires their own expert, and the two experts often wind up opposing each other in the adversary negotiations or in litigation. Understandably, this makes the process more contested and more expensive and more time consuming.
Divorce mediation is normally far less costly than the two attorney adversary model of negotiations. The settlement discussions occur directly between the parties with the facilitation and guidance of the mediator. This is a far less complex and more straight-forward communication dynamic than is the case when two attorneys are involved. As one can imagine, when each party is represented, it requires the attorneys to first discuss an issue with the client, then to communicate/negotiate with the other attorney, then take the information back to the client, as well as to hope that scheduling issues and accurate information transmittal are not problems.
In addition, it is a fundamental requirement of mediation that clients voluntarily follow through with disclosure of financial information, corroborating documents/statements and other information necessary to make informed decisions. This is also a less costly process than the use of subpoena and client deposition procedures that are normally a part of the adversary model.
In the long term, it is likely the most enduring benefit of mediation is that the cooperative, respectful and dignified transition from marriage to divorce is emphatically supported and fostered in divorce mediation. This is of central importance where children are involved and the parties will be co-parenting is some form for years to come.
For more information about divorce mediation, contact Peter Axelrod.
Copyright 2010-2012 Peter Axelrod, J.D., M. Ed.
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