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What is Separation / Divorce Mediation?

Mediation is an opportunity for the two of you, with the help of a neutral mediator, to negotiate a mutually-satisfactory Agreement concerning the issues relevant to a separation or divorce. These issues might include the division of property and debt, parenting arrangements, child and/or spousal support, etc. The mediator makes no decisions for you, but rather assists you to reach common ground on each issue. The actual content of the agreement is decided by the parties. The goal is an agreement that is fair and acceptable to both of you, and in the best interests of any minor children.

Mediation is also useful in negotiating post-divorce issues, or other family conflicts.

Frequently asked questions:

Is Mediation a new alternative to Divorce?

Mediation is not an alternative to divorce; it accepts that a separation or divorce is going to happen. Mediation is an alternative process for working out the terms of a divorce. Rather than approaching divorce or separation as an adversarial process, mediation allows couples to work out the terms of the divorce together, and to devise an agreement that is acceptable to both of them, and in the best interests of their children.

Mediation has been used in the divorce context for more than 20 years, but it has become increasingly widespread in the past 6-8 years, as its effectiveness has become more widely known.

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How Does Mediation Work?

Mediation is a voluntary negotiation process through which a divorcing couple works together with an impartial third party – a mediator - to develop a mutually-satisfactory agreement concerning the issues relevant to their separation or divorce. These issues might include parenting, the division of property and debt, child and/or spousal support, etc. The goal in mediation is for the couple to reach a mutually-acceptable agreement concerning those issues - an agreement that both of them consider fair and in the best interests of any minor children. The mediator makes no decisions for them, but rather assists them to reach common ground on each issue.

In mediation -- rather than working against one another as adversaries, as so often happens in a divorce -- the couple works together toward a common goal. Through the mediation process, each of them gains clarity about what is important to them, what their priorities are, what their concerns are, and what their options are. They also gain clarity about all those questions from the other person’s perspective as well. They each come to understand what will make an agreement work for themselves, and what will make it work for the other person; it takes two to make an agreement. With that information and understanding, and with the help of a skilled mediator, couples are able to find ways to integrate the concerns of both of them, and to achieve an agreement that will work for both.

In our practice, we require that each party then take any agreement they have reached in mediation to an attorney for at least a one-time consultation prior to signing, so that they have the benefit of advice from someone who represents their interests, which we do not. Clients may also consult with their attorneys throughout the process, if they wish. We find that attorneys are very supportive of the process, and recognize its value in producing clients who are comfortable with their agreements.

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Does Mediation Always Work?

No. There are situations in which mediation does not “work”, if you define “working” as reaching an agreement. Mediation can and should be a very empowering process, providing information and understanding that enables people to make informed decisions. In our mediations, no decisions are made until there is a balance of information and understanding between the parties. But there are occasionally situations in which no amount of education within the mediation process can remedy a power imbalance; in those situations, mediation is inappropriate. There are also situations in which it is more appropriate, or more satisfactory to the parties, to have agreements negotiated by attorneys, rather than face-to-face, or to have decisions imposed by a judge.

It is a mistake to think that mediation is only appropriate in “friendly” divorces; that is not the case. Mediation can be successful in highly contested cases as well, so long as there is a basic commitment to finding a resolution that will work for both, or at least a basic understanding that there will not be an agreement unless it works for both.

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What are the Advantages of Mediation?

It allows a couple to work together as partners, rather than adversaries, in achieving a divorce agreement. This is often much less costly - emotionally and financially - than an adversarial divorce.

It allows a couple to reach resolution and move on with their lives; when people have control over the content of their agreement, they accept it and live by it.

It also helps couples to develop better patterns for resolving future conflicts, and to build the groundwork for working together later as parents, but no longer spouses.

Mediation can also be a very empowering process. Each of the parties gains information and understanding about the issues, and is then in a position to make informed decisions that effect their lives and the lives of their families. Rather than feeling out of control - a feeling quite common during the divorce process - people are able to work through the issues in a step-by-step manner and develop a sense of control over their own lives.

Mediation can be a very healing process, though that isn’t always the case. It allows people to acknowledge and address one another’s needs and concerns in a way that serves their own self-interest as well. Because there won’t be an agreement unless it works for both parties, the mediation process helps people to work toward addressing the needs and concerns of the other person, as well as themselves.

And of course mediation is generally less time-consuming and costly than proceeding through the adversarial process.

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Parenting after Divorce

Through mediation, couples can learn to separate "spousal" issues from "parenting" issues, and to work together as parents even though the marriage is ending (or ended at some point in the past). The process of working together helps parents to move beyond the objectification and vilification of one another -- to become partners, rather than adversaries, in the parenting of their children.

In divorce or post-divorce mediation, couples can together work out a parenting plan (aka custody and visitation) that focusses on the best interests of their children, rather than on their own needs or wants. Such a plan should take account of children's developmental needs, and may contain mechanisms for making adjustments over time.

In our mediation with couples, we often help them to build a lot of "conflict prevention" into their agreements:

  • To set up mechanisms for making changes and adjustments over time, thus normalizing the process of change.
  • To set up mechanisms for information-sharing about the children.
  • To establish regularized times for them to meet together as parents, for discussion of parenting issues.
  • To develop "parenting principles," to guide their interactions as parents, but no longer spouses.
  • Etc, etc.

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Family-Centered Divorce

Through mediation, couples can approach the divorce process in a way that is family-supportive. The process seeks to help couples to develop a divorce agreement that is fair and acceptable to both of them, and in the best interests of their children, thus allowing all family members to move into the next phase of their life in the best possible shape. They work together to develop the terms of that agreement; this process of working together toward a common goal helps people to move beyond anger and hurt, and to leave the marriage "whole" to the greatest extent possible -- emotionally and financially. In the process, where there are children involved, they lay a strong foundation for working together post-divorce, as parents (and eventually grandparents!)

Through mediation, couples can address all the issues relevant to a divorce -- division of assets and debts, support issues, and parenting. In working toward a mutually-acceptable resolution of each issue, each person feels their needs and concerns addressed, and feels "supported" by the process.

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How do I lay the groundwork for a healthy co-parenting relationship post-divorce?

This faq was first published in Divorce Magazine and is reprinted here with their full permission.

In any divorce, there is a gift that you can give to your children: the commitment to work together as partners in affording them the love and support of two parents. This doesn’t pre-suppose a particular parenting arrangement, but rather a recognition that your children’s needs must come first and that working together may require extra effort on your part, for their sake. Strive always to look at things from the point of view of your children and set aside your spousal issues and power struggles. Recognize where problem areas might lie, and develop mechanisms to minimize conflict.

Rather than dwelling on the negative – whose fault this or that problem is – look for constructive solutions that focus on avoiding that problem in the future. Keep in mind always that you are doing this for your children and that an amicable, or at least businesslike, co-parenting relationship free of conflict and rancor will be your gift to them.

The goal, of course, is to focus on the best interests of your children. But it is not uncommon for parents going through a divorce to mush together their own needs and their children’s needs as if they were the same. It’s important to separate what you want from what will be best for your children and to focus on the latter. Also recognize that no matter what you decide initially regarding your children, those arrangements will likely change over time if you are sensitive to your children’s needs. Acknowledge this and talk about it. When I work with parents in mediation, I try to help them to build into their agreement mechanisms for making changes and adjustments over time – to see change as normal rather than an occasion for crisis. The goal is to work together over time as partners rather than adversaries in addressing the evolving needs of your children.

It is often useful to set up a mechanism for “parenting meetings” once a year or so; this provides an opportunity to discuss parenting issues together in some depth, outside the presence of the children: How are they doing? What about schools or summer plans? Are any changes called for? etc. Parents in my mediations also often devise some “parenting principles” to guide them in their future co-parenting relationships; these principles are commitments they make to one another about their co-parenting efforts. You will be parents together forever – you will eventually be grandparents together! – so learning to work well as parenting partners, though no longer spousal partners, is an essential component in any divorce.

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My wife wants to mediate our case because she says we will save money by not having to hire lawyers. My friends say we will still need to have a lawyer involved. Who’s right?

This faq was first published in Divorce Magazine and is reprinted here with their full permission.

Our goal is for the couple to reach a mutually acceptable agreement related to the issues relevant to a separation or divorce that both consider fair and in the best interests of any minor children.  Clients may choose to obtain legal, as well as any other professional advice, at any time during the mediation process. We find that attorneys are very supportive of the mediation process, and recognize its value in producing clients who are comfortable with their agreements.  We require each party to take any agreement they have reached in mediation to an attorney for at least a one-time consultation prior to signing, so that they have the benefit of advice from someone who represents their interests, which we do not.

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