Here at the Weinberger mediation blog, we share a lot of detailed information about the mediation process. We have previously discussed some of the mistaken ideas or “myths” about mediation circulating out in the public. This month we are highlighting the facts behind a few more myths:
MYTH: We will have to file for divorce before we can go to mediation.
FACT: Divorcing spouses who choose private mediation can meet with a family mediator before anyone files for divorce. Many people choose to do this to avoid having their case put on a court calendar. That way they can negotiate without artificially imposed deadlines. Once the parties have worked out a Marital Settlement Agreement, they can file it at the same time they file their divorce papers, dramatically streamlining the entire process.
MYTH: I did my own legal research on google, so I know what I am entitled to. If my spouse does not agree to that, we will end up in court anyway, so mediation will just be a waste of time.
FACT: You can find a lot of good legal information on the internet these days, but most of it consists of general principles rather than absolute answers. There is a lot of room for discretion in the law. If you present rigid demands to your spouse based upon your own interpretation of your rights, you may well end up in court. That will take the discretion out of your hands and put it into the hands of a judge. Mediation is a creative and individualized process. It often allows the participants to come up with solutions that are better for both parties than anything a judge would order. Family court judges are generally overwhelmed with cases and do not have the time to spend coming up with imaginative and unique solutions.
MYTH: My spouse is the high-income partner and will have to pay all the attorney’s fees, so it really won’t cost me anything to go to court and try to get a better result for myself.
FACT: When one spouse has little in the way of separate assets, attorney’s fees generally come out of marital funds. If one spouse has a much higher income or a disproportionate amount of separately owned assets, then a court might order that spouse to pay part of the other spouse’s legal fees and costs. Counting on this, however, is very risky. You will have to file a request in court (which costs money), and it’s impossible to know up front how much a judge might eventually award. In the meantime, your attorney is not going to work for free. You could end up taking out loans and running up credit card debt to pay for litigation costs. Such costs can quickly grow out of control.
Another thing to keep in mind is that it doesn’t always make sense to fight hard for every penny, because attorney’s fees and court costs deplete the pot of funds available to divide between both parties. If your spouse is better equipped to fund the costs of a divorce than you are, then you need a good lawyer. In most cases, though, that lawyer will be able to advise you as you proceed through mediation, at a much lower cost than the cost of litigating in court.
MYTH: If we are going to hire lawyers anyway, then it makes sense for them to negotiate directly with each other, rather than for us to pay a whole separate person to help us negotiate.
FACT: When parties let their attorneys take the lead right off the bat, they miss the valuable opportunity to maintain control and brainstorm their own creative possibilities together. Attorneys are trained to advocate aggressively. While this is a valuable skill at the right time and place, it can sometimes work against resolution early in a case. A mediator will help the two of you maintain a collaborative tone while you work toward out-of-court resolution. You will indeed be paying a third person if you hire a private mediator. While you work with that person, however, you will not also be paying hourly fees to your own attorneys. You should be able to have brief consultations with your attorneys during the mediation. If the mediation is successful, you will not have to pay them high fees for litigation.
MYTH: I have heard that mediation only works for couples who are on friendly terms and want to stay that way. My ex and I are not friends, and frankly, that is how I want to keep things.
FACT: Contrary to popular belief, most people who get positive mediation outcomes are not particularly friendly. They are often angry, confused, and even terrified about what is happening in their lives. A good mediator helps divorcing spouses communicate their settlement requirements in a focused, non-confrontational, and goal-directed way. Once both parties have done this, the mediator helps them craft collaborative solutions to maximize positive results across the board.
Some people do report that mediation decreases hostility toward their former spouse. This is a positive side-effect for ex-spouses who want to remain friendly, especially co-parents who need to communicate after divorce. If you just want a business-like relationship and minimal contact with your ex, however, mediation is still a good choice. On the other hand, if you are experiencing uncontrollable anger or are afraid of your ex, proceed with caution. A good first move is to consult with both an attorney and a therapist. The therapist can help you resolve negative emotions that could be preventing you from moving forward and getting positive results.
MYTH: We will just waste time and money in mediation because we are so far apart in what we want. Why bother with a non-binding process?
FACT: Even when parties are far apart, mediation can be productive. It can help participants see more clearly where they might have some overlap in positions and possibilities for compromise. It is true that not all couples are successful in mediation. Sometimes, however, even parties who cannot reach a settlement agreement can remove a few discrete issues from the legal fight. A partial settlement can save you money and time in court. Mediation itself is not binding, but agreements you reach in mediation and file as written settlement agreements in court are as binding as any orders issued by a judge.
MYTH: Family mediation is only for divorce.
FACT: People can use mediation to address many types of family conflict. Parents, whether divorced or never married, can use mediation at any time to address disagreements. They can use it to revise parenting plans or resolve financial issues like college funding. Sometimes parents include older children in mediation sessions so that they know their views are an important part of decision-making. Divorced spouses can use mediation to modify a settlement agreement. Adult siblings sometimes use mediation to resolve conflicts about elder care. Mediation is a collaborative process that helps participants reach agreement about all kinds of disputes.
Are you wondering about some of the things you have heard about mediation? We are here to answer all of your questions and help you understand the process.