Mediation is one of the most popular legal solutions available when it comes to negotiating the terms of a divorce. As I have stated in various blog posts before, I myself am a huge advocate of divorce mediation (and collaborative law) when it comes to settling disputes between couples that are willing to take an alternate route. For the process of divorce mediation to work as it should – both of the parties involved in the case must have some willingness and exert at least a little effort. Mediation is a voluntary process, and neither party can be forced into it – making it a highly different approach to litigation or the adversarial divorce case. Most likely, the couple pictured above, however, would benefit by utilizing some of the tips contained within this blog. Please consider the picture then, advice on what not to do.
In the traditional court centered divorces, a divorce proceeding can be started within the court without the consent of the other party, as one side and their lawyer will draft the initial pleadings, file them, and serve them to the other side. In New York, the other spouse involved will then have twenty days to “appear” within the case, which then makes both sides participants in the adversarial divorce. If your goal is to settle your divorce case “amicably”, then mediation is potentially the best route to pursue. In divorce mediation, yourself and your spouse – or in certain cases, the two of you and respective lawyers, utilize a mediator that will help you to resolve and discuss the issues in your divorce. Though the mediator will not make your decisions for you, they will serve as a facilitator to help you determine what is best with your spouse.
Sometimes, in a mediation process, it can be helpful to talk about the purpose of the mediation, or why divorce mediation is the chosen process. Though I cannot take credit personally for the below bullet points and some of tips the afterwards within the mediation process, I do regard them as a highly helpful guideline. The ideas discussed in this blog were inspired by materials I obtained during my training to become a certified mediator, particularly an article in the “Friendly Divorce Guidebook for New York”, written by Steven L. Abel, J.D., S.W Whicher, M.A, J.D., and M. Ardern Hauer, M.A. J.D. During my extensive experience practicing family and matrimonial law, I have found these suggestions to be a helpful guide in entering the process of divorce mediation. Some useful things to talk about may include, as mentioned before, the reasons behind the divorce mediation, for instance, you may be prompted by a general desire to:
- Be friends following the divorce
- Use a process that is financially prudent
- Be proud, rather than ashamed of the process (an issue that can occur with adversarial solutions)
- Act within the best interests of the children
- Be fair to both parties involved
More specific goals behind choosing mediation over the process of adversarial divorce may include:
- A desire to be emotionally and financially stable in a new life
- Financially support children involved while they are minors
- Maintain continuity with work life and careers
- A desire to retire at a certain age
- To share within the parenting process regarding the children (in a fashion appropriate to the family in question)
Concluding a mediation in a cooperative and beneficial fashion will take some work, regardless of the fact that mediation itself is a less adversarial approach to the divorce procedure. In some circumstances, when negotiations begin within the mediation process, your professional mediator may suggest that you address the simpler issues in your divorce first. Sometimes, answering easier questions that are likely to spark less controversy can help to encourage compromise and build trust. Settling a divorce, almost like any other form of dispute, usually contains aspects of compromise about it, be it when it comes to property, support, or maintenance. Usually, quid-pro-quo attitudes should not apply to issues regarding custody and parenting time matters for your children which ideally are to be drive by what is in the best interests of the children.
Negotiating the agreements of your divorce may not seem like a completely linear process. You may begin working at what feels like the end of your list of worries, and may even need to gather more information at various points too. A good thing to keep in mind is that your mediator will help you to brainstorm different options and stay on track, while encouraging yourself and your spouse to express what is important to you in a healthy way, and listen to what the other has to say. Perhaps two of the most important things to keep in mind when attempting to conclude a mediation in a cooperative manner, is that you must be open to compromise, and you must really attempt to understand and listen to your spouse’s point of view. Remember, just because you listen and understand doesn’t mean you agree, but it can help to avoid unnecessary argument.
During negotiation, remember that you should never attempt to use your children as hostages and make them participants in the on-going battle between their parents. Instead, try to move forward with your life and think about the future, control your emotions, and don’t let your anger, sadness, or disappointment drive the way you act. It can be helpful to acknowledge the fact that each of you has a part to play in the fact that the marriage simply hasn’t worked out, and communicate to discover what each side wants out of the mediation. Remember that speaking clearly is important, and you should gather your own information from appropriate accountants, professionals, sources, research, attorneys, and financial advisors.
Although your mediator will be there to help you discuss the issues that need to be decided within your divorce mediation, remember that you need to speak up for yourself and you should do so. However, it’s also important to keep in mind that for a negotiation to work, you cannot focus entirely on your own needs, balance and temperance are essential goals to seek. Try to be positive in the way you talk and speak about your spouse, as negative words can sour negotiations. Finally, make sure that you live up to your end of the bargains you make – financially, or otherwise.
For more information, please see our other blog entries, and call about your free initial consultation. It would be our pleasure to speak with you about it.