This article was first published in the Divorce Magazine and are reprinted here with their full permission.
Mediation can help you and your spouse work together to solve the problems of separation.
By Diana Shepherd
Even if you and your spouse are still on reasonably friendly terms, you'll probably encounter difficulties as you try to work out the details of your separation. When emotions are running high, it's almost impossible to make rational choices. Let's face it: neither of you is in the best frame of mind to make objective decisions that will affect the rest of your life.
Mediation is a voluntary settlement process giving you the opportunity to control the decisions that will affect your future. In mediation, you deal with the issues and problems of separation and divorce outside of a courtroom setting. As a result, mediation is often less costly -- both financially and emotionally -- than litigation.
According to Forrest Mosten, a Los Angeles mediator, family law specialist and the author of A Complete Guide to Mediation (American Bar Association), mediation is a new alternative to divorce litigation. "As people become disenchanted with our court systems, and as we become aware of the significant impact that a family breakup has on children, more people are turning to mediation." Mediation isn't marriage counseling -- that's for couples who want to get back together again. You may discuss your feelings about the marriage and the decision to divorce during the process, but the goal of mediation is to reach agreements that will help you, your ex, and your children (if any) adjust to the divorce -- and resolve future issues together.
During this cooperative, problem-solving process, an impartial professional helps divorcing couples to clearly define the issues in dispute and to reach agreements that are in the family's best interests. The mediator will generally meet with both of you at the same time, so if you and your spouse can't stand to be in the same room together, then mediation is probably not for you. You don't have to be best friends with your spouse in order for mediation to work, but you must be willing to search for fair and equitable solutions to the issues that you're confronting.
"Mediation can be a self-fufilling prophecy, because if both parties choose mediation, both are hoping to meet a compromise. The result is their mediation process becomes easier, and both leave happier with the outcome," says Gregory Cooper, a Toronto lawyer and member of Resolutions Inc., a group of lawyers dedicated to resolving family law disputes through mediation and/or arbitration.
A mediator helps you identify the points on which you already agree, then works with you and your spouse to create practical, informed solutions to the others. During mediation, you'll deal with issues both large and small. Here are some examples of typical questions that come up during the process:
Each mediator will do things a little differently, but each is there to help you and your family find solutions to your problems. This doesn't mean that the mediator will try to talk you into something. He or she may suggest options to resolve the issues, but the final agreement is always up to you. A good mediator guides the communication process, allowing each of you to have your say. He or she will help to clear up misunderstandings, and show you how to communicate more clearly with each other -- which should reduce any negative feelings you may have for each other.
Your mediator doesn't replace your lawyer -- although some lawyers are also mediators. The mediator should have a good knowledge of family law, but your own lawyer is still needed to tell you what your rights and duties are, and to advise you on any written agreement you come to. A good mediator will encourage you to consult an attorney about specific questions of law, and to seek a legal review your agreement before you sign it. Your lawyer is there to look after your interests in the divorce; a mediator doesn't represent either party.
The mediator will help you examine your situation in terms of your needs and interests. Again, your own situation is unique, but here are some of the steps you'll take during the mediation process:
No, it doesn't. Successful mediation requires two individuals who are able to put their emotions aside and find solutions that allow each of them to achieve a positive result. Here are examples of situations in which mediation may be impossible:
"There are so many advantages to mediation, it's sometimes hard to remember them all," says Francine St. Clare, a mediation specialist with the New York firm St. Clare & Schmuckler. "Mediation doesn't inflame an already bad situation, which makes it easier on everyone -- especially the children. In litigation, children are usually the last thing discussed, but in mediation they're the first."
Mediation also becomes a learning process for many couples, according to St. Clare. "Mediation teaches couples to talk to each other until the child is grown, and maybe even beyond that. Talking to each other is an ongoing process after the divorce, and mediation prepares them for that.
There are several other possible advantages to mediation, including:
Many courts provide mediation services to help families resolve custody and visitation disputes. In some locations, when families disagree about plans for their children, mediation may be required by law. Mediators also work in private practice. Your lawyer may be able to recommend a mediator, as can friends, family, or co-workers who have used mediation. The best way to find a mediator is by word of mouth or through professional organizations.
In most of the US and Canada, mediators don't have to be certified before they can work with the public on a fee basis. But most mediators are affiliated with professional organizations that require specific training and experience. Referral information can also be obtained from these professional organizations (see "Referral Information," below left).
Before you settle on a mediator, be prepared to ask questions such as:
Article appears courtesy of Divorce Magazine.
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