What is Divorce Mediation?
Divorce does not have to involve a costly and lengthy court battle that ruins relationships and depletes hard-earned assets. In fact, many divorcing parties do agree on some or all terms of the legal portion of their divorce. However, putting these pieces together takes hard work and a mediator can help significantly.
While many spouses and partners negotiate issues related to their divorce through their attorneys, others use a mediator. Still others negotiate with their attorneys at a mediation session where a mediator helps the negotiations along. The bottom line is that divorce mediation is a flexible process that focuses parties on problem solving with the help of an unbiased mediator.
At a divorce mediation appointment, parties focus on solving problems and sorting through issues with the help of a mediator. These appointments are private, confidential, and provide parties greater control over how they move through the separation and divorce process and what the outcome will be.
Divorce mediation is generally a voluntary process (though many Georgia courts order divorcing or unmarried parents to participate in mediation) in that parties will choose to mediate. At mediation, parties can reach partial agreements (including temporary or interim agreements), complete agreements, or even choose to continue mediation at a later date (whether any agreements are reached).
Continuances - where the parties temporarily suspend mediation and reconvene later - are common in divorce matters. Why? Often, more information or records are needed. Sometimes a professional opinion is needed (for example, a valuation of property or tax advice) or legal counsel is needed. Mediation allows families to make good decisions without needlessly increasing the pressure of those very important decisions.
Does your attorney need a mediator?
Attorneys can negotiate settlements without a mediator. However, holding "peace talks" at the same time as waging war in litigation is tricky.
So, a mediation session allows all parties to essentially take a break from "the fight" and focus keenly and in a concentrated period of time on solutions. In this time frame, the mediator helps both sides generate options and ideas that may better than moving forward in litigation (with its associated risk, cost, and time commitment).
Attorneys have ethical constraints that makes mediation attractive in the context of divorce. Ethically, attorneys must be "zealous advocates" for the client's legal interests. In divorce, the client is just the spouse - not the children, the family business, the logistics of post-divorce life. Family lawyers recognize that their ethical duties to the legal concerns of the client could sacrifice the greater picture (the legal and the non-legal) issues of their client. At mediation, it is often easier for attorneys to work on the "Big Picture" because settlement discussions cannot be used in a trial later.
A good attorney knows that the model of a trial - where one person wins and the other person loses - is often not the reality for a family or even for the individual parties. Why? Because time in the process and the cost of staying in the litigation process may not promote either spouse's priorities or goals (for example, financial stability, certainty, etc.). Family lawyers comment frequently that family law trials rarely end with just one side losing - rather, both sides lose.
Attorneys also know that the State of Georgia's court rules require that the court refer or order most divorcing parties to attend mediation before they can go to trial. So, attorneys recognize that mediation is going to be a likely part of the process and may recommend it sooner rather than later.
The bottom line is that divorce mediation works well in many instances. So much so that it has become a routine part of litigation in Georgia and, in other states, divorcing parties think more about their attorneys as representing them in mediation rather than at the courthouse.
Will My Mediator Make a Ruling?
Mediators do not make any decisions about your divorce. Rather, the parties make the decisions. While there is no guarantee that any agreements will be reached, divorce mediation has gained significant acceptance because its results often are so positive or are helpful in getting spouses closer to a deal. You jointly remain in control of the outcome.
Think of a mediator like an umpire or referee in a game. Umpires help the players move forward and make sure that the rules are followed, they don't choose the winner. Mediators, like umpires, ensure that parties are negotiating in good faith and will terminate the session, if not. Mediators also help parties share relevant information, when appropriate, in order to keep discussions moving forward.
Divorce Mediation is an opportunity to have your interests, concerns and priorities heard and valued in a way that will not occur at a trial. Indeed, many mediated divorce agreements contain terms that will not come up at trial because they are not legal issues (e.g., college tuition for the kids).
At the end of a mediation session, parties often do one of five things. They either:
On the other hand, mediation can be terminated by either party (or even the mediator) with no agreements whatsoever. This termination is often called "impasse" and means that the family is likely to have few choices other than to litigate in court.
Did you notice that a mediator can terminate a mediation session? It is not common for a mediator to terminate a session, but it happens when a mediator believes that negotiations are not progressing (sometimes due to bad faith negotiations or when parties are unprepared or unable to make decisions for themselves), when criminal conduct may be at issue, or if the mediator has a personal conflict (e.g., illness, etc.). Mediators are far from mere messengers, they do ensure that negotiations proceed and are the "guardians of the process."
The Bottom Line:
Divorce mediation is a process where the parties can exert the most control over the outcome and in a time frame and pace that they jointly set. It is private and a time where everyone is focused on the issues at hand.
Call our office or register for Crash Course Divorce for more information.
We help families in transition work on how they will separate and divorce in a private setting where the spouses set the pace, make the decisions, and focus on the future (not the fight).
After divorce mediation, complete agreements are then submitted to the appropriate court for approval/inclusion in a Divorce Decree. When a complete agreement is obtained before anything is filed in court, then the parties are well positioned to file an "uncontested divorce."
Partial or even temporary agreements made in mediation are also very helpful. Partial agreements help increase certainty between the parties (and reduce stress), and also help parties narrow their focus on solving what's left rather than everything all at once.
Divorce mediation is often an ongoing process. While many parties will hold one mediation session, others will mediate - take a break - and reconvene to mediate again later. Often, breaks are taken to get information or to seek a professional opinion (for example, getting an appraisal, getting tax advice, etc.). The point is that divorce mediation is done at your pace and on your schedule with a focus on solutions rather than on blame, the past, and waiting for court dates.
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