Traditional legal divorces are falling out of favor among separating couples who want to forgo the time, money, and rancor that attend such proceedings. Attorneys bring heavy fees upon couples who are often struggling as it is, both financially and emotionally. The family court system, even with people seeking alternatives, still boasts a daunting backlog that can make separating couples feel as if their day in court will never come.
Alternative dispute resolution, or ADR, methods have come to provide gentler and more immediate resolutions to divorces. One such strategy for resolution is mediation. Mediation has a number of uses in the legal system, but has been gaining popularity as a method of settling a divorce without having to go to court. This may be the alternative you were looking for. Here, we’ll go over when to choose mediation in a divorce, and more about exactly what mediation is and is not.
Divorce through litigation should be the last resort of a couple who has exhausted all other options. This is the most expensive means of pursuing a divorce for both parties, and if the representatives of both spouses cannot reach a fair and equitable agreement, the suit will go to family court, where a judge will be the final determinant of the divorce’s terms. Both parents may bristle at the thought of a judge who has no connection to the family, holding the lives of their children in the balance. Furthermore, the time-consuming nature of a family court’s infamously packed docket could mean you’ll wait a very long time for a resolution.
At the other end of the continuum from a traditional legal divorce is the do-it-yourself approach. Obtaining boilerplate forms and completing the nuts and bolts of a divorce agreement without the aid of legal representation has become an affordable alternative for couples who believe they can end a marriage amicably, seamlessly, and quickly. While this does significantly expedite the process for divorcing couples, it’s still necessary for the state to sign off on the paperwork. Additionally, performing one’s own divorce without an advocate can have unexpected and costly ramifications that don’t present themselves until years down the road.
Collaborative divorce is the alternative dispute resolution method most akin to mediation. In a collaborative divorce, each spouse has legal representation involved, and together, they work to achieve a resolution that works for both parties. Successful collaborative divorce and mediation are both contingent on the same principles of fairness, calmness, and willingness to work together, but because each party must secure an attorney, some divorcing couples prefer to streamline the process and work with one mediator instead.
Mediation is a form of alternative dispute resolution that bypasses the courtrooms, dueling attorneys, and the complications that arise from both. In a mediation session, a licensed mediator will act as a neutral third party between the two spouses and facilitate discussions and agreements regarding the details of their divorce agreement. Unlike a judge, a mediator cannot make legally binding decisions, and a court will still need to approve a mediated divorce. However, mediation allows the proceedings to remain in the hands of the spouses themselves with the assistance of a mediator, and for it to move at a pace that both parties want. Staying out of the legal system means that you can keep private details private, as they should be, while mediation keeps such details out of the public record. If you want to resolve your separation with comparatively low expenses, a low profile, and an approach that seeks positive outcomes for all parties involved, mediation could be the right choice for you. That being said, there are caveats and conditions to be aware of when pursuing mediation as a resolution for divorce.
Arguably the most urgent prerequisite for seeking mediation is that there must be no history of violence or domestic abuse. Divorce under any means of resolution is an emotionally charged situation, and you need to know that you will be able to conduct mediation sessions safely and without fear of police intervention. If you do not feel that you will be safe in mediation, or that you cannot trust yourself, a legal resolution to divorce may be the only feasible avenue.
Honesty, specifically about finances, is the best policy for mediation. A sizable component of a divorce agreement concerns dollars and cents—alimony, child support, real estate, pensions, retirement accounts, insurance policies, and healthcare coverage, among other issues. A successful mediation requires both parties to be forthright with their mediator about their respective and shared financial situations. When it comes to mediation and money, an unwillingness to fully disclose finances or an unfamiliarity with the relevant issues can derail this train before it’s even left the station.
Mediation is not an option when one party cannot let go and cannot maintain composure. Rather, mediation is the optimal decision when the feeling is mutual. The surfeit of media about divorce can give people the wrong ideas. Not all divorces are brimming with contempt, nor full of the high drama of the film Kramer v. Kramer. Quite often, both spouses realize that the marriage is not working out and that it’s best for both of them to separate amicably. When everyone is on the same page, it’s considerably easier to file for divorce and work with a mediator.
If you’ve learned more about when to choose mediation in a divorce and determined that this is the correct path for you, all that’s next is settling on a mediator. The law firm of Schiller DuCanto & Fleck, one of the leading family law firms in the Chicago area, offers trained mediation lawyers who can help guide you to a peaceful and mutually beneficial divorce. By choosing mediation—or any method of alternative dispute resolution—over a traditional legal divorce, you can maintain your privacy, avoid the unpleasantness of family court, and do what’s best for you and your children.