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Mediation Is A Viable Option To Resolve Matrimonial Problems
Jan L. Warner & Jan Collins

Question: I have been following your column for years because I found it interesting; however, now that my husband left me after 27 years of marriage and three children, information is a matter of survival. My lawyer has suggested that since my husband and I still get along, we try to mediate the financial issues involved in our breakup. Is there a way to mediate situations like ours without going to court and without giving up my rights?

Answer: Absolutely. Mediation is a voluntary method of dispute resolution through which an independent, impartial person -- or persons -- helps individuals who are having conflicts and disagreements discuss and negotiate suitable resolutions. Unlike arbitration (where the third person acts as a private judge) and litigation (where a judge or jury makes the final decision), mediation requires that all parties agree on a solution before it becomes final.

In effect, the mediator acts as a bridge between the parties, trying to set the stage for constructive communication by the use of reflective listening techniques while making suggestions if an impasse is reached. Because the final decision rests with the participants, the mediator should not encourage or coerce participants to accept or refuse an agreement. And since power imbalances may exist between people who are at odds, mediators should be sufficiently trained to help "shore up" the imbalance.

Why mediate? So long as there is no threat of harm or of one party removing the assets, trained mediators can help you and your husband focus on the real issues, search for all possible options, and increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence to bear on the problem.

If mediation doesn't work, you can still sue and go to court. Because mediation is totally voluntary, if it's not working, either you or your husband can end the process and move promptly into litigation or exercise another option.

If litigation is your only alternative, be forewarned that by going to court, you risk allowing someone else (a judge or jury) to impose a decision on you after an expensive and time-consuming process that is totally without guarantees of positive outcomes

But remember: statistics show that 80 to 90 percent of filed court cases settle before trial only after the expenditure of significant amounts of money and time. Many of these risks of losing time and money can be avoided if you are able to negotiate a solution directly and retain control over the outcome..

Because you and your husband know your needs better than anyone else, if you can still work together, you have the opportunity to customize a negotiated resolution for your unique situation.

It is important to remember that judges don't have any special wisdom or insight that lets them understand the practical and psychological needs you have in your family, school, and business affairs. And they may be restricted by legal rules that prevent them from addressing all aspects of your conflict to develop a real solution.

In mediation, there are no arbitrary rules that limit your ability to deal with the whole picture. Your agreement can cover both legal and non-legal issues and can be more creative, comprehensive, and on-target than an outcome reached through litigation.

Because of the legal issues involved, and because the mediator should not give either party legal advice, it is important to have a lawyer available to you to deal with these issues and to make sure you are protected legally.

Need more advice or help with this topic? Click here to get information about taking the "Next Step".

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