It happens. Not all mediations are successful. Mediation can be terminated, suspended or postponed. Some couples are just not ready to work together or don’t have the necessary trust level between them. Sometimes a party feels he or she is “giving up” too much. If one or both parties are too interested in “victory” or revenge, divorce becomes a zero-sum game where one party’s gain comes at the expense of the other party. Children suffer terribly in these cases, watching their parents fight it out. These divorces are extremely expensive as they drag on, hearing after hearing, and they leave scars and resentments that may never go away.
Sometimes, a couple cannot seem to agree on one or more topics. The mediator will encourage full discussion about the underlying emotions or reasons for the disagreement. He or she may provide suggestions for alternative approaches to the problem, or ask the parties to imagine themselves in the other party’s position. In some cases, there can be a trade off on a separate issue that is satisfactory to both parties. Disputing parties will be reminded that almost any solution they construct will be better than asking a judge to decide the issue for them.
The couple meets together with a trained, neutral mediator, preferably an attorney familiar with the divorce process. With the help of the mediator, the couple identifies the issues that must be addressed and resolved in order to get the court’s approval for a divorce. These issues may include division or disposition of the marital home, division of personal assets and liabilities, as well as issue related to the children of the marriage. We explore and discuss these issues over a number of 1-2 hour sessions in the mediator’s office. Many people find it easier to be candid about their feelings about an issue in such a neutral setting.
There are many, but the most obvious are the Four C’s:
Control – The pace of the process is up to the parties. There are no deadlines or absolutes. Either party may terminate the mediation at any time. The parties can resort to adversarial proceedings with no prejudice from the mediation. Also, mediation may reduce the number of issues to be litigated.
Confidential – No one, other than the parties, needs to know about the divorce until after the court hearing, if then.
Civil – While emotions can be high, mediation encourages civil discussion between the parties about difficult matters. It also provides a basis for future discussions.
Cost-effective – Mediation is almost always less expensive than an adversarial divorce, usually much less expensive. There are no advance retainers. Most mediators charge an hourly rate on a session by session basis. If finances are tight, sessions can be scheduled when most convenient for the parties.