QUESTIONS AND ANSWERS
What is divorce mediation?
Divorce mediation is a process in which a neutral, impartial third party, facilitates your discussion and agreement of the issues associated with developing an effective parenting plan and the equitable distribution of assets and liabilities. In a calm and comfortable setting, the mediator helps you explore various solutions and find common ground so that an agreement may be reached. To keep the process moving in a positive and productive manner, he will encourage you to voice your needs and perspectives while keeping you focused on the issues. The overall goal of your mediator is to assist you in developing a satisfying, comprehensive agreement that meets the needs of all those involved. Especially the children.
Who is Mediation for?
Mediation is an excellent choice for most couples. Those who have made the decision to divorce, those who simply wish to only separate, and those with issues that occur after the separation or after the divorce is final are all candidates for mediation. Mediation is great for couples who are agreeable, but it can offer tremendous advantages to those who are in disagreement. A little hurt and anger can actually help the process along because in many cases it causes the participants to empower themselves and stand up for what they believe. Many couples who have poor communication skills and are in high conflict are amazed at the success they have had at the negotiating table. Remember that your mediator is trained in helping you settle your disputes, so success amid anger is very common. Lastly, remember that you never, ever, forfeit your right to seek satisfaction in the courts if you are unable to resolve your issues in mediation.
Mediation is not for those engaged in any type of physical abuse. You are encouraged to seek immediate protection and legal advice before entering into any type of negotiating with a physically abusive partner.
What are the advantages?
Mediation is generally less time consuming and less costly than the adversarial “going to court” process. Agreements reached in mediation tend to last longer than decisions imposed by a court because they are mutual and take into account the needs and wishes of both parties. The process is voluntary, cooperative and confidential. It is especially useful for families with children as the process enhances and encourages a spirit of cooperation as couples will be co-parenting children from separate residences.
- Enables individuals to emerge from a divorce with self-respect intact
- Protects family relationships
- Benefits children by reducing conflict
- Focuses on the present and future — not the past
- Strengthens commitment to an agreement
- Parties retain control over process
- Controls financial and emotional costs of the divorce process
- It is empowering
What issues are discussed?
Clients can choose to talk about a wide range of concerns, but typically, couples in divorce need to address parenting plans, child support, equitable distribution of property, and spousal support, if necessary. At Carolina Divorce Mediators, we have a thorough step-by-step process that covers most all issues. A few examples of discussion items are houses, cars, RVs and boats. We talk about banking and investment accounts, 401k plans and life insurance. Who takes the tax deduction for the kids, who covers health insurance co-payments, and how and when a spouse will be reimbursed for his or her portion. For the children, we talk about not only who has the kids when, but how will they get to the other parent’s home? At what time? Who pays for summer camp? Little league? College? Can the parents be at school functions at the same time? Will the children need to have a separate phone number at each home to talk to the other parent? Will the parents agree to work together for the sake of the children? It is an all-encompassing process and we try to leave no stone unturned.
How does it work?
You will meet together to work out the major decisions raised by divorce. Your mediator will help identify the issues you need to resolve, and help guide you through the decision-making process toward agreements that really work for both of you.
The mediator will then draft a Memorandum of Understanding for your review, after which it is given to an attorney for the purpose of drawing up a separation agreement. The separation agreement then becomes the basis for an uncontested divorce.
Read a comprehensive summary HERE.
How long does the entire mediation process take?
The number of mediation sessions needed to reach an agreement depends on the complexity of the issues involved, how agreeable the couple is, and how motivated they are to reach an agreement. Couples with few assets and no children usually take less time than average. Couples with complex financial and business issues might take a little longer. A typical couple with a house, 2 cars, basic 401K retirement accounts, and a couple of children are usually finished in 6-8 hours. Sessions are generally three to four hours in length and are scheduled over a period of a few weeks. Your Memorandum of Understanding is usually available within a day or two after your last session. Also, longer or expedited sessions may be accommodated in the event that a couple is from out-of-town or is highly motivated towards settlement.
But I’ve already been to an attorney.
The hiring of an attorney does not preclude you from mediating. Your mediator is not an attorney, and will not give legal advice to you or your spouse. You should contact an attorney for legal support when necessary, especially when considering the legal ramifications of any decisions that you are considering. Since you are mediating, your attorney should not be acting in an adversarial capacity but in an advisory capacity, offering you counsel when you need it. If you wish, you may have your attorney present during your sessions.
Remember that if you go to court, the costs of your attorney preparing your case and presenting it to the court can exceed the cost of mediating by many times. Even if you already have a court date set, you can still mediate in advance and avoid having a judge make an undesirable decision.
But I have no idea what I am doing, I really think I should have an attorney.
Again, the hiring of an attorney does not preclude you from mediating and if you mediate with us, you will always be urged to contact an attorney for legal advice. If you really want to be in control of your future and the future of your children, but just don’t feel comfortable going it alone, contact an attorney. Ask him or her to work with you on advisory basis while you mediate and that you don’t want to leave your life decisions up to a judge. An attorney will keep you abreast of your legal rights, possibly help you with different settlement options, and help you understand any legal implications of decisions on the table.
What does it cost?
We charge an hourly fee that is usually shared equally by the husband and the wife. This reinforces the concept of the process being voluntary and equitable. Of course, it is permissible for only one of you to make payment. Some clients have mentioned that it would be difficult to share the mediation expense as the spouse had “cleaned out” the joint checking account. They still mediated, the other spouse made payment, and the first spouse had the other’s portion deducted from that share of the settlement proposal.
Although the entire divorce process involves the services of both a mediator and an attorney, the cost of a mediated divorce is typically a fraction of the cost of a court litigated divorce. That’s because you, and not your attorneys, are doing the talking, and you, not a judge, are doing the deciding.
What if my spouse is domineering?
A good mediator pays attention to the way couples interact and is trained to recognize any power imbalance between them. If one spouse wants to “give away the farm” just to get out of the relationship, or if another spouse continues to display dominating behavior, we will use specific methods to “re-level” the playing field. This does not imply that the mediator will choose the side of the weaker participant, but simply try to minimize dominant behavior and help everyone involved make informed decisions.
Doesn’t mediation makes the divorce take longer?
You can sit down and mediate your settlement in just a couple of weeks. When the attorneys are doing the negotiating for you, it takes two weeks just to send out the first two “demand” letters. The use of a lawyer-negotiated settlements almost always takes longer than mediating.
Don’t all divorce lawyers understand and support mediation?
Unfortunately, no. Although mediation and conflict resolution has been in use for years, some adversarial lawyers have little or no experience with the non-adversarial approach used in mediation. Some even disapprove of mediation, arguing that non-attorney mediators don’t understand the law and can’t possibly guide couples through the process. Fortunately, mediators do not have to be trained in the practice of law, but simply trained in conflict resolution so they can help you arrive at solutions to your areas of disagreement. We help you decide what you want to do, the lawyers can put it in a legal, binding agreement. And again, you are encouraged to have an attorney for any legal advice you may need along the way.
Why can‘t the mediator just decide what’s fair?
As you well know, if you go to court, the judge will certainly decide what he or she thinks is fair. Unfortunately, what is fair to the judge is not necessarily what will work for you. Mediators have no power to make decisions or awards for divorcing couples. Your mediator is there to help you make decisions that you consider fair and equitable.