Here are the answers to the most frequently asked questions about divorce mediation:
Q. How is divorce mediation different from the traditional approach?
A. In the traditional approach, each spouse is represented by their own attorney whose only role is to represent that individual’s best interests in the pending case. All communication is supposed to go through the attorneys from one side to the other. The lawyers are prohibited by law from speaking directly to the other party without that person’s attorney being present. The opposing parties (i.e. husband and wife) are strongly discouraged from communicating with each other due to concerns that either might disclose confidential information to the other side that would be harmful to the discloser’s interest, or that the direct communication could become so acrimonious that it might preclude a peaceful resolution to the case.
By comparison, divorce mediation requires the parties to communicate directly with each other face-to-face, with the assistance and participation of a mediator trained in both productive conflict resolution and the law. In most mediated divorces, neither party retains an attorney, although they are free to do so. When a lawyer is brought in by a party, it is usually to consult on a specific issue or to review the final agreement.
The following hypothetical “transaction” in a traditional divorce illustrates how divorce mediation can simplify and streamline the process:
“Susie” (the wife) has an idea for how she and her husband might allocate weekend and summer vacation time with their child. She calls her attorney so he can relay the message to the other side. Her attorney turns on the “meter”, takes some notes, asks a couple questions, and agrees to call the other lawyer, which he does immediately, keeping his meter running.
The attorney for “Joe” (the husband) takes the call and turns her “meter” on as she takes notes on the proposal, asks a couple questions, and then agrees to call Joe. The wife’s attorney goes off the clock, but the husband’s lawyer stays on the clock as she calls and talks to Joe. Joe listens, takes notes, but has a couple questions that he needs clarification on before he will agree. His attorney agrees to get answers to Joe’s questions.
Joe’s lawyer then calls Susie’s and both are now on the clock discussing Joe’s questions. And so the transaction proceeds until both parties working through their lawyers have ironed out the details and agreed on just one element of their divorce.
Compare that to how the same agreement would be reached in divorce mediation:
Susie and Joe are both sitting with the mediator at a conference table in the mediator’s office. Susie lays out her idea for both Joe and the mediator to hear. Joe interrupts a couple times to ask questions and the mediator does a little refereeing to keep the process from getting bogged down as well as to share information about what the law requires in this situation. Joe seems to like the overall approach, but has reservations on a couple points. The mediator offers some ideas about how to meet Joe’s concerns while keeping the basic thrust of Susie’s proposal intact. Joe and Susie both respond to and discuss the mediator’s input. With some additional back and forth discussion, Susie and Joe reach agreement.
Obviously, mediation is only for those couples where both husband and wife are willing and able to work with each other. That is not to say that tempers won’t occasionally erupt, nerves fray, or hurt and anger surface, but an accomplished mediator is usually able to help the participants navigate the rough waters. In fact, during 13 years of divorce mediation, Cynthia Fox has only had two couples that failed to make it to the finish line out of the dozens of cases she has mediated.
The benefits are numerous: With the attorneys out of the way, a mediated divorce typically costs far less than the traditional approach. It will go as fast (or as slow) as its participants want, while the timetable for a traditional divorce is inevitably constrained by the court’s deadlines and backlog of cases. And, the journey is far less punishing emotionally and psychologically, with both participants usually experiencing a strong sense of accomplishment and ownership when the divorce is accepted by the court.