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The Basics of Mediation
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by Elizabeth L. Allen
Excerpted From Margorie Engelís Divorce Help Sourcebook
Available By Credit Card Purchase on This Website for $17.95

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An increasingly popular way to get a divorce is through divorce mediation. This process differs in many ways from the adversarial judicial system, where primarily attorneys and judges determine the outcome of a case. In mediation, the husband and wife are assisted in reaching their own agreement by people trained to help couples find workable solutions to all of the issues that must be resolved.

The mediators guide the couple through the decision-making process but do not make any decisions for the couple. Control over the outcome remains completely in the hands of the husband and wife.

The Mediation Process

Mediation takes place over a series of sessions, which proceed at a rate that meets the couple's needs for moving through the process either quickly or slowly. Sessions are held in the privacy of the mediator's office and begin with all involved signing an agreement that the negotiations will be kept confidential.

During mediation, each party is required to disclose anything that would have a bearing on the issues. Typically, assets of significant value are appraised and information is gathered, analyzed, and discussed until both parties have a clear understanding of all options and can make informed decisions on each issue.

Successful divorces are on the rise, helped by new concepts in family law such as no-fault divorce, equitable distribution of property, mediation, and joint custody of children.

Once each issue has been resolved, the mediators draft a formal "Marital Settlement Agreement" (the form filed with the court to become part of the Judgement of Divorce) or an informal "Memorandum of Understanding" (the form drafted by a non-attorney mediator that is taken to an attorney for review). Clients are encouraged by some mediators, and required by others, to have this agreement reviewed by an attorney of their choice prior to signing it. Once final revisions are made, husband and wife sign the agreement, and it is presented to the court along with other documents necessary to complete the divorce. The signed agreement is a binding contract, and it becomes a court order.

Most couples, regardless of their level of animosity, can utilize mediation as a means to work out the terms of their divorce. Skilled mediators are trained to deal not only with the legal aspects of divorce but with the emotional aspects as well.

Many mediators work in attorney-therapist teams, using their combined knowledge and skills to assist couples in reaching agreements that are legally and emotionally sound. While it may cost more to engage the help of a team of mediators, the benefits of having two mediators working together throughout the process can be significant, particularly in difficult cases. Although some mediators are attorneys, they cannot represent or advise the mediation clients. They often present relevant legal information, but they may not give legal advice to either party.

In order for mediation to begin, the husband and wife must be willing to attend mediation sessions together. Although some mediators work extensively with each party alone, most prefer joint sessions. In instances where either party is afraid of the other, or of the consequences of speaking up for his or her interests, mediation is not suitable. [Mediation {in cases of domestic violence}]

Benefits of Mediation

One of the chief benefits of mediation is the level of detail that can be addressed in all areas. Potential custody battles are refocused into a search for a detailed, workable parenting plan. A schedule is negotiated with the children's needs as the primary focus. Often parents are encouraged to try out a plan before committing to it. Usually a plan is formulated that includes future planning meetings between the parents as well as procedures that they can use to deal with changes in their circumstances. Some mediators involve the children in the mediation sessions that relate to them, and others work only with the adults.

Most couples take between six and 20 hours to work through their divorce in mediation. When both husband and wife want the divorce, the mediation moves relatively quickly. Otherwise, the sessions may occur over a longer period of timeit is not unusual for a couple to take a year to complete their mediation. [Mediation {length of time involved}]

Selecting a Mediator

Selecting a divorce mediator can be difficult. One place to look for a list of mediators is the classified section of the phone book. Another way to identify qualified mediators in a given locale is to ask a therapist. A third way is to contact the Academy of Family Mediators, [Academy of Family Mediators] located in Minnesota, and ask them for a referral to an experienced mediator in your area.

Mediation Allows Control

Mediation is used by divorcing couples wo deplore the prospect of a court fight or of allowing the mechanics and biases of the legal system to make binding decisions about their future. These couples want professional guidance in order to maximize their input for the separation agreement. Even when mediation does not result in an actual agreement, many couples will have developed a greater ability to cooperate and compromise through attorney negotiations.

Although the odds are that a mediation that has begun will be successfully concluded, some are not. When couples cannot successfully mediate all of the issues that confront them, they usually seek the assistance of attorneys and proceed through the traditional system. Even when mediation is not completely successful, the couple may resolve some of their issues and reduce the number of issues left to be handled in court.

Because the benefits of resolving a divorce through mediation are so great, it is generally advisable to attempt mediation as a first step. If mediation is successful, both husband and wife, as well as the rest of the family, stand to gain. They can fashion their own individualized and detailed agreement. A long-range benefit is that most people become invested in the terms of their agreement and are more likely to comply with the agreement than they would be to comply with an order imposed by a judge. This is especially important in regard to support payments, which are more apt to be paid on a regular basis when the person paying has a hand in working out the details.

Many mediators not only assist couples in working out the terms of the agreement but also prepare all of the legal paperwork and file it with the court. In states where this full-service mediation is available, the divorce process is made simpler for the client. On the other hand, some mediators prepare an informal "Memorandum of Understanding," and require that the clients have the formal agreement and other divorce documents prepared by an outside attorney. The key is to find out in advance what aspects of the divorce the mediator will handle and then to select a mediator who offers the most comprehensive service and utilizes the most streamlined methods for advancing the divorce through the legal process.

Because divorce on a large scale is a relatively recent phenomenon in our history, we have not as yet developed rituals to mark it, as we have done for marriage. Many mediators incorporate some type of ritual into the final phase of the mediation process. In this way mediation differs from the traditional system. It affords an opportunity for a couple to obtain a divorce with dignity and with privacy, and allows for emotional healing, closure to the marriage, and an acknowledgment of the new beginning that occurs when the divorce takes place.

Once the divorce is over, the couple can return to mediation to resolve conflicts they may encounter over parenting, support, or any other issue. They may use mediators to assist in the drafting of a prenuptial agreement, if they remarry. The negotiation and communication skills that the couple acquires during mediation tend to make their post-divorce contacts with each other easier. Many couples say, at the end of divorce mediation, that if they had been able to talk to each other throughout their marriage as they learned to do during divorce mediation, they might have been able to work things out. Although few couples decide to reconcile during the mediation, most believe that they achieved the fairest result possible by taking an active part in their divorce and by turning what could have become a battle for control into a search for mutually beneficial solutions.

About the Author

Elizabeth L. Allen, Esq., is an attorney and mediator with a private practice in Encinitas, California, home of Coast to Coast Mediation Center. While her law practice has included civil and criminal cases, Elizabeth currently devotes most of her time to mediation and mediation training. She and her husband, Don Mohr, work together as an attorney-therapist mediation team for their clients and travel throughout the country giving mediation training workshops for professionals.

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