Three Approaches to Divorce: How Mediation Can Play a Role

If you are just reaching a decision about ending your marriage, you may be confused about the best way to go about it.

Perhaps you have friends urging you to hire an aggressive attorney to prevent your soon-to-be-ex from trying to take advantage of you. Or maybe your friends are urging you to steer clear of expensive attorneys and just handle everything yourself. Perhaps you and your spouse are fairly amicable and you are both interested in divorce mediation, but you aren’t sure which issues you actually need a mediator to help you resolve. Is mediation the right answer? The truth is that there are several ways to approach a divorce, and each way tends to have potential benefits as well as potential drawbacks. Many people are concerned about “losing” financially to a difficult spouse. Many others are focused only on getting the fastest and cheapest divorce possible. While all of these concerns are valid, it’s important to avoid focusing on any one concern to the exclusion of others that may be equally important.

Beginning a divorce with a mediator is often a good choice. Many people however, start with a different approach. This does not mean that the parties can’t incorporate mediation at a later date.

The following is a list of three of the most common approaches to divorce. We also list some potential benefits and potential drawbacks for each approach, as well as noting when and why it might be appropriate to incorporate mediation into each process:

Litigating in Court

Sometimes spouses begin by hiring separate attorneys to take over all aspects of their divorce. The attorneys work on retainer and provide full representation. They may submit multiple court filings and make multiple court appearances, possibly culminating in a full trial.

Potential Benefits

  • Spouses who are unable to communicate with one another due to an abusive or extremely difficult relationship sometimes find that litigation is the only realistic option.
  • If one spouse suspects the other of hiding assets or draining accounts, it may be safer financially to engage in a formal discovery process and conduct negotiations primarily though attorneys.

Potential Drawbacks

  • Litigation is generally the most expensive way to resolve a divorce.
  • Litigation tends to increase conflict and hostility between the parties, resulting in high emotional costs as well.
  • Turning everything over to attorneys and a judge removes control from the parties.

How Mediation Can Play a Role

Starting a divorce on a contentious footing doesn’t mean that the parties can never move to a more collaborative position. Mediation can be introduced at any point in a divorce case. You can use it to try to resolve all of your issues, or to address isolated issues only. If you have a more complex case, such as a case where the advice of financial experts or other prefessionals is necessary, taking an issue out of court and into mediation often means that simplified reports and shared experts will be feasible, which can greatly reduce costs.  If you are involved in litigation and you believe that you and your spouse might be able to resolve at least some of your issues out of court with the help of a neutral third party, talk to your attorney about mediation.

Negotiating a Settlement with Attorney Support

Parties who are able to negotiate with one another directly can often reach a settlement with minimal attorney involvement. Divorcing spouses who trust one another to be truthful may be able to exchange documents informally. Each party will still need an attorney, but the attorneys can play a more limited role. They can provide legal advice on specific issues, draft and file the complaint for divorce, and ether draft or review the final settlement agreement.

Potential Benefits

  • Limiting attorney involvement generally lowers costs.
  • Staying out of court tends to reduce conflict, and therefore tends to reduce emotional costs as well.
  • Staying out of court also allows parties to retain more control over both the divorce process and the settlement terms.

Potential Drawbacks

  • Parties who choose a more informal or limited exchange of information must be diligent in producing all relevant documents and facts, and must trust the other party to do the same.
  • Parties must take care to keep their attorneys fully informed and not agree on critical matters before receiving advice on potential legal ramifications.

How Mediation Can Play a Role

Divorce mediation fits naturally into this kind of more amicable approach, and it is frequently extremely helpful. Even the most collaboratively minded couples often become stuck on one or more issues. A mediator can step in as a neutral party and get discussions back on track.

Handling a Divorce Pro Per

A “pro per” divorce is a divorce that the parties mainly handle by themselves without additional help. The spouses may prepare their own documents using self-help services available through the courts. Alternatively, they may hire a paralegal or document assistant to prepare paperwork for them. Often they never consult with attorneys at all.

Potential Benefits

  • Handling a divorce with little or no assistance is the least costly approach.
  • The parties retain control over the process and the results.

Potential Drawbacks

  • If disagreements come up, the parties lack support to help them get things back on track.
  • Even in a simple case, failing to receive legal advice up front or have attorneys review a final settlement is extremely risky and can result in costly mistakes that may not be correctable down the road.

How Mediation Can Play a Role

A mediator can help ensure that each side gets an equal say and can referee if discussions go off track. In a relatively simple case, a single mediation session may be sufficient. Mediators can’t offer legal advice, but they can provide legal information. They can also offer guidance regarding the necessity of legal advice. This can help ensure that attorneys are brought in only when necessary. At the same time, it ensures that parties don’t reach a final settlement without receiving critical legal counsel.

Can Mediation Play a Role in Your Case?

Even if you haven’t chosen to start your divorce with mediation, you may find that mediation can be a helpful alternative or adjunct down the line. For more information on how to incorporate mediation into your divorce process, talk to one of the experienced mediators at Weinberger Mediation Group. You can contact us for a free consultation today!

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