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Divorce Mediation Facts
What is Mediation?
Definition
"Mediation" is a voluntary settlement process emphasizing informed decision-making and mutually acceptable agreements. The difference between mediating an entire divorce and going to divorce court is the difference between finding an agreement-based transition to a new life versus an order-based termination. It is the difference between voluntarily sharing information and responding to demands and subpoenas.
In a formal sense, "mediation" means "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement," and "mediation consultation" means "a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator."
The Difference
In divorce court people file Order to Show Cause (OSC) hearings that order their spouse to come to court. In divorce court people file statements or declarations telling the world what their spouse is a rat, snake, sleaze or cheat. And they frequently complain about sex, alcohol, drugs, and hidden money.
In divorce court people don't seem to realize that all of this information is a public record open to anyone who is interested, including their children as soon as they are old enough to go downtown and read the file of mom and dad.
Compared to Divorce Court,
Mediation is like a day at the beaches.
Mediation is Different
- In mediation we agree to agree.
- In mediation we agree not to sue each other.
- In mediation we focus on the needs of each spouse.
- In mediation we talk about the needs of the children and we look at child sharing from the point of view of the children.
- In mediation we concentrate on sharing financial information by disclosing the assets, debts, income and abilities. We talk about the responsibilities between and spouses and the responsibilities that the spouses have to themselves.
I have found that most people keep the ability to talk in mediation even if there is a short-term communication problem caused by the emotions of the loss. The farther we go into mediation the easier it is to work together.
I have found that most people have a settlement idea in mind at the time they are separating and that position may be very reasonable.
I believe that a lot of people go to divorce court because they don't know about alternative dispute resolution. They go to a divorce lawyer to find out about a divorce and the divorce lawyer simply walks them into divorce court.
I am convinced that most people don't belong in divorce court in order to end their marriage and pursue happiness.
Note: Everything shared in mediation is secret and privileged.
Most cases are handled for a flat fee that includes the preparation of all the court forms and other paperwork required to obtain a judgment. The fee depends upon the number of issues or subjects that we must resolve. For example, some issues are:
- What will happen to the family home?
- How much for alimony?
- How much for child support?
- Who gets the kids?
- I want the money back that my folks gave to buy our house.
- Who gets the pension? I had it before we got married.
We provide a reasonable flat fee for these issues. That includes four (4) mediation sessions, each of two (2) hours and the preparation of all documentation for both husband and wife. It works out to less than the initial retainer is most competent family law offices for one client.
Of course, not all cases have children and not all couples have houses. That makes the mediation shorter and it costs less. In some cases we get different issues:
- One spouse was running a business for years before the marriage and it really took off during the marriage.
- One spouse had the house before the marriage but it was remodeled during the marriage.
- What will we do with these debts? Some were around before the marriage and we paid those down.
Some cases do not involve a full divorce and only have one issue, such as, the child is now 16 and wants to live more over here. "Help us with child support."
Hourly mediation with simple paperwork or no paperwork is very reasonable. We usually request that each spouse contribute one-half the amount.
Isn't this the same as using one lawyer to do everything?
No. A lawyer must represent a client zealously. It is impossible for one lawyer to "advise" both parties zealously. This is an elementary conflict of interest.
In mediation I help the parties find their own solution. I do not force anything upon them, nor do I suggest a pre-arranged solution. I simply help them to communicate.
In my mediation we stop at the point that we have a sound agreement. Before anyone is bound, I put that information into a "memorandum of understanding." Each spouse is encouraged to take that memo to their own independent attorney for review and approval. Then the marital settlement agreement (MSA) is prepared and the husband and wife have a second chance to get that independently reviewed and approved.
What is the hardest part about this?
The hardest part about mediation is educating the public that they do not need to go through a traditional divorce down in divorce court. I find it hard to overcome the fears that people have which drive them to be aggressive and pay a large sum of money to protect the "rights of men" or "father's rights". Conversely it can be hard to convince people that you do not have to rough up your spouse to obtain fair and legal support.
What is the best part about this?
- You don't have to worry about whether the judge will like you.
- You don't have to say nasty things about someone you loved.
- You don't have to worry about the kids, the house, or how much money you will have because you will be part of the process.
- You don't have to put your life in the hands of a stranger, a judge, who will hear your story and make court orders based on an argument that lasts 20 minutes or less.
- You don't have to go wait in line.
- You are protected by your actions, not in danger.
You may make an appointment to come in alone or with your spouse.
The financial material you gather now will help move mediation along. Begin to copy everything so that your spouse will have a full set of documents in original or in copies.
If you and your spouse decide to go with mediation, then you will be provided with more materials at the beginning that specifically apply to the issues involved in your case.
I look forward to helping you make a deal.
More Mediation Facts:
What does it cost?
Isn't this the same as using one lawyer to do everything?
What is the hardest part about this?
What is the best part about this?
What is next?
Why does the state bar certify legal specialist?
To help the public identify attorneys who have demonstrated proficiency in specialized fields of law.
This is a highly regarded certificate, not many have it, James D. Scott does . . .