When it comes to divorce, mediation offers several benefits, chief among which is the ability for spouses to settle their separation without the animosity or cost of a court trial.
So why do many divorcing couples have an aversion to mediation? Part of it could be chalked up to lawyers not fully explaining what happens in a mediation, which in turn has lead to the proliferation of myths and half-truths surrounding the idea.
In an effort to dispel common fallacies about mediations, we’ve put together a list of why it can turn out to the best deicion you make to settle your divorce.
- It’s Far Less Traumatic than a Trial
Divorce trials are never smooth. Not only do you need to justify the reasons for your divorce, and in the process relive bitter memories, you also have to do it in front of a judge and in Texas, sometimes even a jury. Both parties can expect to answer questions and be subjected to cross-examination on the witness stand, but that’s not the worst of it.
You can also expect to sit through the testimonies of your family, friends, neighbors, therapists, and doctors as they give the judge and jury a laundry list of reasons why you or your spouse is at fault for your deteriorating marriage or why you or your spouse should have custody of the children.
In contrast, mediation is far less traumatic and more importantly, a lot more private. Meetings take place in your lawyer’s office or your spouse’s lawyer’s office; you and your don’t even have to be in the same room. You don’t have to bring in witnesses either.
- It’s NOT Arbitration
Many divorcing couples confuse mediation for arbitration, but they’re very different procedures.
In arbitration, an arbitrator acts like a judge and listens to both parties, making a decision that may or may not be binding—it all depends on what arbitration you agreed to.
In mediation, the mediator helps both spouses reach a mutually beneficial resolution, but neither of you are obligated to do anything the mediator suggests. Most people have their own private attorney’s who attend the mediation with them, therefore, you have the benefit of your own lawyer’s advice throughout the process. Ideas and offers are exchanged, you can accept those offers and settle your case, but you don’t have to.
A mediator’s role is to advise, while the arbitrator actually has the power to enforce (again, depending on the kind of arbitration you signed up for). Reliable divorce mediators have years of experience helping couples, and will know how a judge would rule on certain issues, which helps in resolving issues caused by one or both spouses clinging to an unreasonable position. Your lawyer is your best asset in helping with the selection of the most qualified mediator for your case.
- You Can Outline Demands (Within Reason)
One crucial advantage of mediation is how you can request certain conditions that are unlikely to be accepted by a court judge. For example, if you’re in a state with specific alimony limits and conditions, you can still request an amount larger than what’s allowed in court, or request for alimony in a settlement even if it’s unlikely to be awarded by a judge.
Of course, your mediator will let you know you’re asking for a condition you probably wouldn’t get in court, but whether or not your soon to be ex-spouse will agree to it will depend on your circumstance and the terms you agree on. For example, the alimony may be contingent on your agreement to certain demands made by your spouse that also wouldn’t be approved by a judge.
- Mediation is Faster and More Cost-Effective
While it’s possible to have your lawyers negotiate a settlement on their own, without someone to mediate negotiations, the process may last longer than it should. This in turn means paying more in your lawyer’s hourly fees.
By going through a mediator, you have someone who can command both parties’ attention and put the settlement on a clock. And before you know it, your lawyers will have reached a mutually beneficial settlement with your approval.
Still, mediation will cost quite a bit of money. Not only are you paying for your lawyer’s time, you’re also paying for half of the mediator’s fees—efficiency with time is key to reducing cost. During mediation, if it’s evident that one or both parties can’t reach an agreement, the mediator will immediately postpone negotiations, which helps you save on your lawyer’s fees. At the end, for most cases, mediation still saves you money.
- Mediations Help You Get Somewhere
Even if mediation does not result in a settlement, you still get the benefit of making some progress on a number of issues, which makes it easier to build your way towards a resolution in the future without going to trial.
Simply put, a lot of progress happens in mediation, with or without a settlement on the same day. It is not uncomment to settle cases after mediation but before trial.
What to Expect During Mediation
You can expect to spend a lot of time with your lawyer, weighing an offer or counter offer from your spouse’s lawyers and formulating your own response, or vice versa. As such, it’s important to work with a lawyer you like, and one you can trust wholeheartedly, especially how it’s just you two who will be in the same room throughout the course of mediation. Yes, that means you can’t bring any guests with you.
With mediation, it’s important to enter the process with the readiness to compromise. Divorces are always hard—there’s division of assets,debts, custody battles, and is some cases spousal support and other claims to consider. And it’s not unheard of for newly divorced people to regret some detail of the settlement due to a fear of missing out.
As such, it’s important to accept the fact that you probably won’t get everything you ask for. Keep your eye on the big picture, and if there are things and conditions you think you truly deserve and aren’t unreasonable, be ready make concessions to receive those.
For the most part, many mediations turn out to be successful, saving divorcing couples thousands of dollars, and more importantly, saving them from the incredible hassle and emotional turmoil of a court date. If you haven’t thought of mediation before, we hope this guide helps you make up your mind.
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