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Why Use Mediation for a Divorce and Will it Work for You?
Divorce mediation allows couples to negotiate the conditions of their separation on their own terms, in their own time. Rather than appear in court on a judge’s schedule, mediation helps couples retain control over their case and make decisions that work best for their family dynamic.
Divorce is never an enjoyable process, especially when children and marital property are involved. The traditional divorce process can cost thousands of dollars. Even worse, it can allow certain private family matters to become public knowledge. Divorce mediation is confidential and much more cost-effective for parties looking to dissolve their marriage.
If you and your partner have agreed to separate but are unsure how to move forward, mediation can be a helpful step in a positive direction. Here’s a look at why mediation is often the preferred divorce resolution method and how to determine if the mediation process can work for you.
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What is Divorce Mediation?
So why choose mediation over litigation for divorce? Divorce mediation is a voluntary divorce settlement process. It’s meant for married couples who wish to divorce and domestic partners who want to separate. During the divorce mediation process, each spouse meets with a neutral third party, known as a mediator, to discuss their desired outcomes.
Family law attorneys often act as neutral mediators vs. divorce lawyers who work with both parties to reach an agreement. The mediator does not represent either party and does not offer either party any legal advice. However, they may provide solutions to both sides to help the parties resolve disputes and keep working towards a final agreement.
Divorce mediation allows couples to work together in a rational, contained environment. Unlike a divorce trial, where private family matters are openly discussed, mediation allows couples to talk about divorce specifics behind closed doors.
Mediation also empowers couples to make decisions that work in the best interests of their family, their future, and their finances. Unlike court, where a judge rules on specifics like child custody and spousal maintenance, you can expect a divorce mediator leaves these decisions up to the couple.
How Divorce Mediation Works
Divorce mediation is a multi-step process that involves at least one mediation session to reach a divorce settlement. Sometimes, multiple sessions are necessary.
First, a couple must schedule their initial meeting with a mediator. In our office, this first meeting is done over the phone or virtually on a joint call. This allows the mediator an opportunity to introduce themselves to the parties and explain the mediation process. Next, both parties must submit an agreement to mediate, or a document that clearly states that they have agreed to mediation.
From here, both parties must submit their confidential mediation proposals, and all other things in this checklist. These documents include tentative arrangements for their children and other financial matters. Then, both attend mediation and sign a mediation agreement once all matters reach a resolution.
Next, if the parties agree, the mediator can draft a formal divorce settlement—known in Arizona as a Consent Decree—that each party must sign. Once signed, the document is submitted to the court for review and, if suitable, is entered as final court orders. The items decided during mediation that are enforced via a court order include:
- Marital property division
- Parenting plan, including child custody and visitation
- Child support
- Alimony or spousal support (known as spousal maintenance in Arizona)
Will it Work for Me?
Divorce mediation is often the most straightforward and least stressful route for family separation, but there are situations where divorce mediation is not recommended.
Mediation could be a preferred divorce option for you and your spouse if you believe the following four points apply to your current situation:
- You Both Have Accepted the Separation. Mediation works best for couples who can collaborate and negotiate to reach a resolution. In Arizona, both parties do not need to agree to the divorce; however, mediation is usually more successful when both parties have accepted that the divorce is happening. When both parties have accepted the divorce, they are usually more prepared to discuss how to resolve the divorce. In some cases, it can take some time to reach this point.
- You Both Agree to Custody Terms. A parenting plan that works in favor of both parents can be the most challenging aspect of divorce. Parents who agree to child custody—or at least have a general agreement—are a good fit for mediation. But, even parents that do not have a general agreement regarding custody can be successful at mediation. Like those working through allegations of substance abuse, although they will usually benefit from being represented by an attorney during the mediation.
- You Both Will Provide Each Other Financial Documents. Mediation delves into financial matters like bank accounts, retirement accounts, pensions, stocks, and other assets. Couples who are open with their financial situation usually fare well in mediation, whereas those hiding funds may need legal help.
- You Both Have No History of Domestic Abuse. When one partner has been abused by the other, it can be difficult for the mediator to determine if the victim is agreeing to the terms of the settlement due to fear or intimidation. These matters will require court intervention. In our office, if there is a current Order of Protection in place, we will require that both parties be represented by counsel during mediation.
If the above factors do not apply to your separation, don’t be discouraged. Most divorce cases can actually benefit from attending mediation though some may require the assistance of counsel during mediation to reach a final agreement. As attorneys, we have resolved many cases in mediation that do not fit into the categories above.
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Divorce Mediation Pros
The divorce process is never easy, but mediation provides each party a level playing field, allowing them to reach an optimal resolution for the entire family. Here are a few benefits of divorce mediation.
1. Knowledgeable Help to Resolve Sticking Points
Where to start with child custody agreements? How to separate marital property? These questions about divorce mediation are incredibly common.
That’s why a neutral mediator is present. A mediator serves as your expert guide through all communications, from coordinating a parenting plan to submitting a formal settlement agreement in court and everything in between.
A mediator has extensive experience with a variety of couples. So, they can provide potential solutions that they’ve seen work for other spouses. They help keep the mediation process on track and ensure a civil, collaborative approach to parenting issues, financial disagreements, and more.
2. Enhances Control Over the Situation
In court, a judge is responsible for making life-changing decisions for your family on matters such as child custody or financial assets.
However, this is not the case for the mediation process. Mediation allows couples to determine the specifics of their divorce on their own terms. It enables creative solutions that work in the best favor of the entire family.
Likewise, mediation—for the most part—can proceed at whatever pace you, your partner, and your mediator agree to, which means you control your time rather than rely on a court-ordered schedule.
3. Encourages an Amicable Separation
A successful mediation often leads to an amicable divorce, which is a significant benefit for spouses who share children or property. Mediation also allows you to work through issues outside of the adversarial litigation system.
Deciding to work together during mediation can pave the way to a happier, healthier separation.
Divorce Mediation Cons
Divorce through mediation can be the most fruitful avenue for couples who are willing to put aside their differences to come to an agreement that best suits their lifestyle. With that being said, certain divorce mediation cons can impact the success of your negotiations.
1. No One to Negotiate on Your Behalf If Unrepresented
Though the mediator’s guidance to work towards an agreement is a major benefit of mediation, it’s important to note that there will be no one to negotiate on your behalf during the decision-making process if you do not hire an attorney to attend mediation with you. Your mediator must remain neutral, which means they cannot argue the settlement in your favor and cannot give you legal advice regarding the terms of settlement.
For those who are comfortable discussing legal matters with a divorce mediator knowledgeable in family law, this shouldn’t be too much of an issue. If you’d prefer an attorney to negotiate on your behalf, you are welcome to bring an attorney to mediation with you. But, this should never be a surprise to the other party. If one party unexpectedly shows up to mediation with representation when the other party believes there will be no attorneys present. This will only frustrate the mediation and cause distrust. If you opt for representation during mediation, it is better to give the other party advanced notice, and it may even be necessary to reschedule the mediation.
2. Necessary for Both Parties to Cooperate
Mediation relies on the cooperation of both parties. If you suspect that your partner may be hiding financial documents, lying to the mediator, or purposefully denying your proposed agreements, mediation cannot be successful.
You can only reach an agreement if both parties are truthful.
Similarly, it’s important that both parties attend each mediation session in a timely manner and are prepared to discuss all issues. Failure to be prepared at mediation can require additional sessions. The more sessions you require, the more expensive (and aggravating) mediation can become.
3. Not Suitable for Partners with a Power Imbalance if Unrepresented
It is best to have counsel during mediation if you are in this position. Mediation, in a lot of ways, relies on trust, and when there is a power imbalance, it can be difficult to reach a resolution if parties do not have attorneys with them during mediation. For instance, a partner who frequently bullies and belittles the other is often not trusted to engage in fair mediation proceedings. The same is true of a partner with a history of lying, hiding assets, and other deceitful behavior. These cases can still be resolved in mediation, but it will usually require the assistance of counsel during the mediation.
Why Choose Mediation Over Other Options?
There are several reasons why mediation is the preferred divorce option.
- Control Over the Process. If your case heads to a divorce trial, you risk a judge deciding how often you see your children, which property you keep, and how much money you owe. Mediation allows couples to retain control over their divorce agreements.
- Confidentiality: Each party submits an individual confidential mediation proposal that remains private. At a trial, the parties testify in front of whomever else may be present during the trial.
- Cost and Time Effective. The costs associated with private mediation are usually limited to the mediator’s time and if you decide to have your own attorney present. When taking a case to a final trial, you typically pay for your attorney’s time all the months leading up to trial, preparing for trial, attending trial, any issues that may arise after trial until you receive the ruling from the judge, and any post ruling issues you may wish to pursue. Mediation can also help to resolve a case faster, sort of a fast track option if you can reach agreements. Whereas, in Arizona, the court’s first availability for a final trial is usually several months out, after you have completed various procedural steps.
- Comfort. A neutral environment like a mediator’s office is much more comfortable than meeting in a courtroom. Likewise, courts provide little control over scheduling, whereas mediation allows couples to select the dates and times of mediation sessions.
- Conflict Management. The impact of divorce proceedings in family courts can drive a wedge between couples and their children. Mediation is a more productive manner of navigating disputes that is also more likely to result in an amicable divorce.
Overall, mediation is often a simpler method for separation that allows couples to decide the conditions of their divorce on their terms in a more cost-effective and timely manner.
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Choosing the Right Attorneys to Handle Your Divorce Mediation
If you’re interested in divorce mediation, it’s important to work with an experienced mediator who is knowledgeable in family law. Your mediator should be able to remain neutral during the mediation process while still referring to past experiences to help create beneficial solutions.
Burggraff Tash Levy PLC is a family law and divorce attorney law firm that’s equipped with qualified mediators to help your separation reach an amicable resolution. Our mediators are able to listen to your concerns as well as your goals of the mediation and help work through proposals that enables you to make the best decisions for yourself, your children, and your finances.
Divorce is never easy, but with a neutral mediator, it can be a lot simpler. Learn more about mediation at Burggraff Tash Levy PLC as you take the first steps towards a divorce settlement agreement that will work in your best interests.