How Divorce Mediation Works

 

Divorce Mediation Replaces Conflict With Compromise And Cooperation

How Divorce Mediation Works

“Understanding conflict is the first step in effectively moving beyond it in order to resolve it. Most people act entirely from an intense emotional standpoint when faced with conflict‚ which prevents them from separating the people from the problems so they can solve them.” — Lori A. Grover‚ N.C.P.M.

Couples who mediate their divorce settlement end up better off financially and emotionally than husbands and wives who fight and litigate their settlement in court, and their children fare better emotionally as well as a result of the reduced anger and hostility between their parents. This doesn’t mean you shouldn’t consult with an attorney about your divorce. If you have questions or concerns, you should. As part of our client orientation and in our Agreement to Mediate both parties are advised to consult with an attorney if they need legal advice or to review their proposed settlement. It’s simply that couples who actively participate in the decision making have greater control over the outcome and in turn, their future. And because they’re in control of the results they’re more likely to stick to the terms of their agreement in the long run. It’s just human nature.


Frequently Asked Questions: How Divorce Mediation Works

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  • Q: What Happens In A Divorce Mediation Session?

    • A: Divorce Mediation sessions are casual and informal. Your mediator will guide the conversation through a problem solving process that encourages the couple to attack the problems, not each other. The mediation process — typically two to five sessions — is collaborative and constructive. Divorce Mediation sessions are structured to address issues in a given order but at times the parties will need to collect specific information or consult with an attorney or accountant for example‚ before resolving an issue and coming to an agreement. In these situations‚ they may agree to adjourn until the information is available or move on to other issues.

  • Q: Can Other Persons Attend Or Participate In The Divorce Mediation Session?

    • A: If both parties agree‚ other professionals such as accountants‚ child psychologists or attorneys may attend a mediation session to advise or clarify specific issues. If both sides agree, the parties may also bring a relative or friend to lend moral support in certain circumstances, but only with agreed upon limitations to the extent of their participation. Children may also be present under certain circumstances if both parents agree‚ but not in the very first session.

  • Q: Is A Mediated Settlement Legally Binding?

    • A: The term “Binding” means having a legal or moral obligation to do something, with no possibility of withdrawal or avoidance. “Non-binding” means the parties are not creating a legal or moral obligation to do something and there is the possibility of withdrawal or avoidance. Therefore, mediation is non-binding during the negotiation process until the parties come to an agreement, which then becomes a verbal contract. Once their agreements are put into writing – called a Memorandum of Understanding – and the parties sign the agreement, it then becomes legally binding. One powerful supporting argument for the use of mediation is that it’s voluntary – no one is forced or coerced into an agreement‚ and a settlement is reached only when both parties are satisfied with the results. As an additional legal safeguard the parties are encouraged to bring their proposed settlement to their respective attorneys for review before they sign and become legally bound to the terms.

  • Q: When Should We Begin Divorce Mediation?

    • A: When you decide to divorce. A divorcing couple’s disagreements and hard line positions can become deeply embedded over time, and this is especially true when attorneys with an aggressive style are retained to represent you, so sooner rather than later is always better. A good number of our clients came to the mediation table out of frustration with “the legal system” once the emotional and financial toll, lost time out of work and unproductive court appearances became too much to bear and claimed that they wished they’d used mediation from the beginning.

  • Q: What Happens If We Can’t Agree In Divorce Mediation?

    • A: Statistics show that approximately 80–85% of couples who use divorce mediation successfully settle their divorce and create a workable divorce agreement, and even if you aren’t able to settle all your issues you’ll still save a considerable amount of time and money at a time when you can use it the most. However, if mediation is not successful you can always terminate the process and have your attorneys negotiate or take your argument before the judge without diminishing or giving up your legal rights.

  • Q: Must We Be In The Same Room, Or Can Our Mediator Act As A Go-Between?

    • A: Direct interaction between the couple with the mediator in the same room is customary, the most effective way to mediate, and it’s how we practice. However, a divorce mediator will, at an appropriate time, offer to take a break to relieve tension or to meet privately with both parties to discuss a sensitive issue that’s preventing progress. It’s known as “caucusing” and it’s a commonly used procedure in the mediation profession. It’s a form of “shuttle diplomacy”, with the mediator going back and forth between the couple who’re sitting in separate rooms.

  • Q: Can We Mediate Only Certain Issues Using Divorce Mediation?

    • A: Yes. You can settle certain issues yourselves and use your attorney(s) to negotiate the rest although we’re confident that once you get comfortable with the mediation process you’ll most likely want to continue to settle your divorce yourselves. One reason is that we take advantage of the calmer, more relaxed nature of the mediation environment to address and resolve sensitive, hot-button issues that often get either overlooked or complicate attorney-led negotiations such as the possible post-divorce change of residence by a custodial spouse, children’s day care arrangements and summer vacation schedules and each other’s out of state travel with your children. And then of course there’s the delicate issue of your ex-spouse introducing your children to their new “friend” or future husband or wife.

      These issues are a part of post-divorce life, they do take some getting used to and if they aren’t at least discussed a little beforehand they can lead to the lingering anger, frustration and expensive trips back to court many divorced couples experience. Divorce mediation is confidential by law and conducted in private and so naturally a better place than a crowded public courtroom to address issues like these, so each issue you resolve in mediation is one less you’ll have to settle in open court.

  • Q: If We Use A Divorce Mediator‚ Do We Still Need An Attorney?

    • A: We always recommend that the parties consult with an attorney for legal advice, and to have any proposals made in mediation reviewed before signing their final mediated agreement. This helps them create proposals based on realistic settlement expectations rather than raw emotions and insures that they understand what legal concerns may come into play based on how they decide to settle important issues. Your choice of attorney is actually more important than the number of consultations or the point at which you consult an attorney and here’s why…

      Many family law attorneys believe in the benefits mediation offers, however some do hold a rather cynical view and don’t feel it’s ever in your best interest to settle your divorce unrepresented by legal counsel. Some attorneys view mediation as lost business and so they downplay its use and effectiveness and still others who believe that once a couple decides to divorce, their living arrangements, all communication and even access to your own children become matters that the attorneys should control as part of a larger legal strategy. Of course, there will always be situations where such legal strategies and tactics are warranted but we believe that for the average divorcing couple, this is counter productive to reaching a divorce settlement because it increases conflict, drives up the cost and ramps up lingering hostility that’s proven to have a devastating effect on their children and their own peace of mind.

  • Q: What’s The Right Kind Of Attorney For Legal Advice If We’re In Mediation?

    • A: We feel your consulting attorney should have experience in Family Law. Ideally‚ an attorney who specializes in family law, who is mediation-friendly, so to speak, and willing to advise and answer any questions regarding your legal rights or mediation strategy in plain language would be your best choice. The RI Divorce Mediation Center maintains a relationship with local family law attorneys who are willing to consult with our mediating clients before, during and after mediation‚ and then use your agreement to create your property settlement agreement and file your divorce paperwork in a professional manner.

  • Q: I Don’t Want Attorneys Involved At All, Must We Use Attorneys?

    • A: In Rhode Island you can file a Petition for Divorce ‘Pro Se’, or without legal representation. However, there are a number of risks involved due to the complexity of the court process which increases with the complexity of the divorcing couple’s circumstances. Paperwork or procedural mistakes, or a lack of preparation can result in frustrating, costly delays or even a refusal by the Judge to hear your case without legal representation! We believe it’s wise for each party to consult with legal counsel then use divorce mediation to negotiate their settlement and then use an attorney to handle the Family Court process. Our experience has proven this to be the smoothest, least stressful and least expensive approach to avoid the risks of entering family court unrepresented.

  • Q: Should Our Divorce Mediator Be A Practicing Attorney?

    • A: We believe your mediator should be a Professional Mediator. True mediation is distinctly different from the adversarial, “win-lose” process of litigating and advocating for one party which attorneys are trained to do and practice daily. The RI Divorce Mediation Center recommends both specialist Mediators and specialist Attorneys: professional mediators for their training and expertise in conflict resolution and attorneys who specialize in Family Law for their expertise in Family Court procedure. We believe divorce is too important a process to compromise on and your needs at this difficult time would be better served by a specialist in their chosen field.

  • Q: Can Attorney–Mediators Offer Legal Advice During Divorce Mediation?

    • A: No. An attorney-mediator who may be, or has been hired as a mediator by a couple cannot give legal advice to either party, either before mediation or during mediation, nor should they represent either party in court after mediation is over as doing so would be a violation of the legal and ethical guidelines which govern the practice of both law and the mediation profession as it raises a serious question of the existence of a conflict of interest.


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