Last month we reviewed some of the benefits that can come from choosing mediation for your divorce. Many divorcing couples decide early on that the mediation process will be the best approach for them. Others, however, decide to try it after first attempting other approaches. Starting another way does not prevent parties from switching to mediation later. In this post we will discuss how mediation can fit in with other divorce processes.
Initiating Your Divorce as Part of the Mediation Process
Couples who are certain about choosing mediation usually know they can collaborate well together. They also usually know they have some issues to resolve before they can enter into a marital settlement agreement. If this is your situation, you can go to mediation before either of you files a divorce complaint. It is a good idea to consult with separate attorneys first. Your attorneys and your mediator can then help you decide when and how you file your paperwork.
The Mediation Process and Pro Se Representation
Sometimes divorcing couples try to save money by handling their own divorce. In a “pro se” or “pro per” divorce (aka DIY divorce), the parties prepare their own documents using self-help services, or they or have a paralegal or document preparation service do it for them. Parties who choose this route must have a high level of trust in each other’s honesty. Even when that is true, there is a risk that one or both spouses could lose significant rights due to mistakes. Hiring consulting attorneys can reduce the risk. At the very least, attorneys should prepare and/or review the final marital settlement agreement.
Parties who attempt to complete their divorce pro se are often able to reach agreement on most issues. They may be left with one or two details, however, that they just cannot quite work out. If you have been attempting to handle your divorce on your own, and you are almost but not quite there, mediation is the perfect way to get unstuck and move on.
The Mediation Process and Court Litigation
When parties are unable to communicate with one another, they often turn to litigation as the only feasible option. For example, 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 through attorneys. If one spouse has been abusive toward the other, mediation should be approached with extreme caution. Sometimes, however, couples choose litigation because they believe their case is too complex for mediation. This can be a mistake, as complexity alone is almost never a barrier to successful mediation. Financial experts and other professionals can participate in sessions, often at a much lower expense than through a court process.
Many attorneys know how to keep the temperature down and help their clients stay out of court. Others, however, let their commitment to zealous advocacy get in the way of finding collaborative solutions. If you have been negotiating through attorneys and find yourselves deadlocked, be sure to consider mediation before letting the attorneys run to court. If you are stuck on one issue, that does not necessarily mean you have to litigate your entire case. You may be able to have a court hearing on that isolated issue and still keep the rest of the case in mediation.
Beware, however, of the NJ judge shortage crisis. Even the most straightforward of hearings can take months and months to occur. This is another motivation to take a seriously look at out of court procedures.
Even after the final divorce decree, you could run into issues in executing court orders. You may also wish to modify certain orders or agreements, such as those concerning parenting, child support, or spousal support. Mediation can be a great way to handle these post-divorce matters.
In our next post, we will take a look at the first steps in preparing for divorce and the mediation process. Meanwhile, if you are ready to consider mediation for your divorce, contact one of our experienced and compassionate divorce mediators today.