What is Divorce Mediation?
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Divorce mediation is a method by which two spouses, desirous of a divorce, meet with an impartial mediator as an alternative to traditional divorce litigation. The purpose of the mediation is to acknowledge the emotional and practical concerns of both parties and help them come to a resolution regarding their divorce. The mediation is complete when the two individuals come to terms and the mediator creates a settlement agreement for the divorce. Such mediation usually takes several sessions and it is customary for both parties to equally split the mediation fees, though it is not imperative to do so.
A divorce mediator is someone who usually has a background in divorce law or family counseling or is a mental health professional. While the emotional aspects of the divorce may hold more weight with a mediator who has a counseling background, it is highly advised to choose an attorney, because they can be especially helpful in drafting the agreement in a way that truly and legally reflects the desires of the parties.
Mediation vs. Litigation: What's the difference?
Gone are the days when court appearance and intense debates must take place before the process of divorce can be officially considered complete. Now, it is common, and in most cases preferable, to terminate a marriage on good terms. Most often, this can be accomplished through mediation rather that litigation. Instead of taking your divorce to the courtroom where it will need to be presented before a divorce judge in order to ultimately settle the matter, you can turn to a professional mediator who can help you do the same outside of the complexities involved in courtroom appearances and trial hearings.
As an impartial, third party mediator, your Orange County divorce attorney can facilitate a resolution between you and your soon to be ex-spouse rather than taking any disputes that arise directly to the courts. Through open lines of communication that are mediated by an attorney, you and your spouse can come to a better understanding of one another's wants and needs from the divorce. From there, both of you can utilize your mediator to establish mutually agreed upon conditions that will ultimately be used to establish the terms of your divorce. Avoiding the expense and stress that often come with litigation, mediation instead uses a problem-solving approach to find agreements that work for both parties involved in the divorce.
What You Can Expect During the Process
Perhaps the most important step to mediation is finding the right professional to act as the mediator of your case. Both licensed attorneys and non-attorneys alike are capable of serving as mediators of a divorce case, however, an attorney can bring to the table additional and different skills than other non-attorney mediators. In cases of mediation, it will not be a mediator's responsibility to determine fault or establish who is right and who is wrong. Instead, it will be expected that the mediator help both parties involved come to a resolution regarding their divorce upon which they both can comfortably agree.
The procedures involved in cases of mediation require no formal discovery. As such, you cannot expect that a great deal of preparation time will be administered to you and your spouse. What you can expect, however, is for your mediation to begin with a general caucus during which time you, your spouse and your mediator will meet in one room to establish the rules under which your mediation will take place. It is important to keep in mind that the statements made at this time are meant to remain confidential and should be freely discussed in order to come to a sound understand of the conditions upon which your divorce agreement will ultimately be made.
During the actual process of mediation, you or your legal representative will be entitled to make an opening statement. At this time, it is expected that you identify the issues that you would like to be brought to the table and resolved accordingly. It is also at this time that you can ask for clarification about any preexisting perceptions you may have about the process in general or your divorce as a whole. A private caucus can be arranged if one or both sides of the divorcing party are behaving in a hostile manner that is not conducive to agreeable mediation. In said conditions, the mediator will be responsible for shuffling back and forth between each private caucus until a resolution is reached.
Advantages to Mediation
Divorce mediation is a reasonable and less costly approach to settling the decisions which need to be made in divorce. The approach to these decisions is one that is hopefully amiable and respectful. Individuals generally go into the mediation process with an intention to find workable solutions rather than trying to win an argument before a Court, as one does in a contested divorce. In a contested divorce, things can be said on either side that can be personally damaging and hurtful to the other. In mediation, it is recognized that the emotional tone of the meetings should be more civil. Mediation can also be a way to cut the divorce costs considerably. In a contested divorce where there financial or child custody disputes, it may generally range in excess of thousands of dollars per spouse. If you are considering divorce mediation, Attorney Marc E. Mitzner, an experienced mediator can assist you.
When an Agreement Cannot be Reached
The decision to mediate the terms and conditions of your divorce does not automatically mean that you will be successful in your efforts to do so. In fact, there have been several cases in the past in which a divorcing couple began with the process of mediation but were ultimately unable to complete the dissolution of the marriage through this means of legal action. It is not required that parties reach an agreement in cases of mediation. When a mediated case does not duly come to a settlement or reach some form of agreement over the matters being discussed, the mediator may prompt both parties to attempt mediation again at a later date.
Sometimes, all that is needed to alleviate the stagnancy of a mediated divorce is time and perspective. Many couples have been successful in completing their divorce during their second round of mediation, not their first. Once a settlement has been reached, it will be memorialized through a written agreement that is signed by both parties of the divorce. This agreement will then serve as the contractual obligations of each party post-mediation. If, however, a settlement still cannot be reached the divorcing couple may need to take the matter to court and have it resolved through litigation. Call a skilled lawyer from The Law Offices of Marc E. Mitzner today for representation!