If you have done any online research for answers to your questions about private mediation, chances are you have come across a great deal of conflicting information. To clear the air, here’s a rundown of the seven most popular “myths” about divorce and family law mediation and the fact about what this out-of-court settlement process really entails.
MYTH: Going through mediation will be harder than letting a lawyer handle my divorce for me.
FACT: Unfortunately, it’s a myth that someone can just hire a lawyer to handle all aspects of a divorce and then step back until it’s over. Only you and your ex have all of the information necessary to resolve your differences. You can’t delegate away either the task of collecting information or the ultimate responsibility for making decisions in your case. While an attorney can step in and help you handle difficult aspects of your case, mediation doesn’t remove this option. It can however, minimize the need for it. Perhaps most importantly, the more work you turn over to an attorney, the more expensive your divorce will become.
MYTH: I won’t have a lawyer protecting me if I go to mediation.
FACT: This will only be true if you allow it to be true. It is always a good idea to hire a lawyer in a divorce case, whether you believe that you will be able to settle your case through mediation or not. A lawyer can advise you regarding legal rights, help you with creative options, and ensure proper preparation of paperwork. Lawyers provide a range of mediation services. Often they serve as consultants, advising clients before and after mediation sessions, or simply helping to finalize settlement agreements. If your case is more complex, however, your attorney can be more involved. Some attorneys even attend one or more mediation sessions with their clients. As the client, you decide how much assistance you want and need.
MYTH: All divorce lawyers are equally competent and skilled at mediation support.
FACT: There are enormous differences in philosophy and approach among family law attorneys. Some avidly support mediation, while others favor more adversarial approaches. Even attorneys who support mediation have widely varying levels of skill and experience. Interview prospective attorneys carefully and ask specific questions about their records of participation and success in the mediation process.
MYTH: The mediator makes the ultimate decisions in a divorce case.
FACT: This myth continues to persist in spite of mediation’s increasingly long history as a vehicle for helping participants make their own decisions. A mediator is not a judge or an arbitrator. Mediators help divorcing spouses explore options and collaborate to obtain mutually acceptable results.
MYTH: Our financial situation is far too complicated for mediation.
FACT: Contrary to popular belief, mediation can be the best venue for resolving complex financial issues. If you have different types of marital assets and need help determining the ownership and value of these assets, your mediator will help you identify and work with financial professionals who can help you. These could be real estate brokers or appraisers, business evaluators, or CPAs. Often parties in mediation can hire one neutral professional when they might each need their own expert in litigation.
MYTH: If my spouse is overbearing, he or she will dominate the discussions in mediation and I will not be able to successfully present my own interests.
FACT: If you choose the right mediator and hire a skilled and experienced consulting attorney, this is unlikely to happen. Mediators address power imbalances between parties and employ ground rules to guard against the possibility that either spouse will dominate the discussions or engage in rude behavior like interrupting and name-calling. Mediators review ground rules before beginning sessions, and you will have a chance to ask questions before proceeding. If you are not normally in the habit of speaking up for yourself, participating directly in negotiations can feel strange at first. You may need to be more persistent than you would ordinarily be in advancing your own needs and wants. A good consulting attorney can help you establish firm boundaries and appropriate bottom lines.
MYTH: A good mediator can make mediation work for any divorcing couple.
FACT: Unfortunately, there are some situations where mediation will not work in spite of a mediator’s level of skill and experience. If one spouse is committed to hiding information, establishing power, or seeking revenge on the other, mediation is unlikely to succeed. If there is a history of domestic violence or child abuse, mediation will be extremely challenging, and possibly inappropriate. A skilled mediator can do many things to balance power and encourage good faith participation, but this will not always lead to a positive result. Mediation does work for the majority of divorcing couples. If you are concerned however, that the process will not provide enough structure or protection for you, talk to an attorney about your particular situation before you decide whether or not to proceed.
Have you heard other things about divorce mediation that may or may not be accurate? We are here to answer questions and help you understand the process.