You Can Settle Your Divorce Using A Neutral Third Party, A Mediator

 

The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers. – M. Scott Peck

Divorce Mediation Is A Better Way To Settle Your Divorce

  • Divorce Mediation gives both sides a chance to be heard equally when the deciding the outcome of their divorce.
  • Divorce Mediation allows couples the freedom to settle based on their own idea of what is actually fair and equitable.
  • Divorce Mediators help couples manage their conflict and disagreement and recognize the wisdom and mutual benefit of compromise.
  • Divorce Mediators guide couples toward agreement and shared decisions that solve the problems they face as they disentangle their lives.
  • Divorce Mediation results in better, lasting co-parenting relationships, healthier, happier children and fewer trips back to court.
  • Divorce Mediation enables couples to feel proud about how they handled their divorce and sets a good example for their children.

Frequently Asked Questions: The Different Styles Of Mediation

Facilitative Mediation is what most people would describe if they were asked “How Does Mediation Work?”

A Facilitative Mediator explores each person’s feelings, interests and points of agreement and disagreement and helps them to understand each other’s concerns and points of view while suggesting solutions, options and workable compromises along the way. Mediators using a facilitative style remain neutral. They don’t offer opinions, coerce or influence the couple’s decisions, nor do they give legal advice or recommendations based on the law or courtroom experience. Instead, they suggest creative, ‘third way’ compromises and solutions and they may provide anonymous examples of how other couples successfully resolved similar issues.

Mediation sessions are conducted with both parties present so each can hear and understand the other’s point of view and reasoning. At times, however, the mediator may “caucus”, or discuss a sensitive issue privately with one party and then the other to reduce conflict and tension, or to gain insight into a sensitive matter that is preventing an agreement. Mediators using a facilitative style always remain in charge of the mediation process but the divorcing couple determines the outcome and the terms of the agreement.

Evaluative Mediation resembles a settlement conference with a judge, and is a style of mediation a deadlocked divorcing couple will usually experience when mediation is performed by a family court attorney-mediator, or an attorney-mediator referred by the court to avoid unproductive court appearances because of an inability to reach a settlement in an uncontested divorce. A mediator using an evaluative style essentially ‘evaluates’ the legal strengths and weaknesses of the parties’ positions and predicts how a judge would decide if they took their case to court. They then make recommendations and settlement proposals that would be approved based on the law, concepts of legally defined fairness and their courtroom experience. Divorcing couples should understand, however, that by predicting and ‘steering’ the settlement process and evaluating the ‘cost versus benefit’ of taking their case to trial, an evaluative mediator directly influences the outcome.

Evaluative Mediation is most often, but not exclusively, the style used by Family Court attorney-mediators and attorney-mediators in private practice, presumably due to their familiarity with settlement conference process and because of their law experience. An attorney-mediator’s expertise with the law is understandably for some couples desirable, but they should understand in advance that an attorney hired as a mediator works for both parties and cannot offer legal advice to either before or after mediation begins, nor should they represent either party in court after mediation as these are violations of the ethical guidelines governing the practice of law and the mediation profession, and may erode the trust both parties’ rely on during the mediation process.

Transformative Mediation is an inter-personal dispute resolution process, rather than a formally practiced mediation style used for legal purposes that works with the concept of personal empowerment and the encouragement of the participants to openly and honestly dialogue with each other to resolve their disputes. A Mediator using a transformative style of mediation will provide a structured framework for the discussion, remain neutral and follow the parties’ lead, simply guiding or intervening when necessary. Transformative Mediators always work with both parties together, as the face to face interaction and mutual recognition of each parties’ position is essential to the mediation process.

Based on giving mutual validation and recognition of each parties’ personal needs, interests and points of view, with the goal of healing the past and preserving the parties’ relationship as much as possible, elements of the Transformative Mediation process are frequently used by Facilitative Mediators working in the legal arena to help couples form mutually respectful post-divorce co-parenting relationships, hence the “transformative” name and nature of this style of mediation.

Our Preferred Approach At The RI Divorce Mediation Center

At the Rhode Island Divorce Mediation Center we integrate both the Facilitative and Transformative Mediation styles. We choose to use both as our experience has shown that assisting a divorcing couple in creating a comprehensive mediated agreement that both parties will believe is not only fair and equitable, but will honor in the future requires drawing on the strengths that both methods offer.

The Legalese:

Mediation can be formally defined as the assistance or intervention by a neutral third party between two or more sides in a dispute to help them reach an agreement. The third parties in the process are called Mediators. Mediators are not commissioned to render a decision or a judgement, but merely to assist and guide the participants in reaching a mutually satisfactory agreement. The mediation process is both voluntary and informal, and is both non-binding and binding for the participants during the process.

You may ask, “Well, how can this be?” Well, in the legal sense, mediation is non-binding throughout the entire process until all participants in a dispute come to an agreement, which immediately becomes a verbal contract. During mediation, the mediator will record and write down the agreed upon terms of your agreement(s) which ultimately then becomes a binding written contract when mediation is complete.

A contract is an arrangement, either written or verbal, that may be enforceable by law which is typically drafted as a document that records a formal or legally binding agreement. The document, or contract, that records the details, term and conditions of the agreement(s) made by a divorcing couple in mediation with regard to their marital property division, children’s issues, etc., is called a Memorandum of Understanding. This is the final work product created for both parties by the Mediator.

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Next:   How Mediation Works

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