Mediated divorce is not the same thing as divorce mediation! This article explains why.
The term “mediated divorce” describes a process in which a skilled, neutral mediator helps the parties make all the decisions they need to make and reach agreement about the terms of their divorce BEFORE DIVORCE PAPERS ARE EVER FILED IN COURT. The term “divorce mediation,” as used by attorneys and the general public, in contrast, generally refers to a settlement conference held as part of a lawsuit, AFTER DIVORCE PAPERS HAVE BEEN FILED IN COURT AND JUST BEFORE TRIAL. The differences in paradigm and process result in two creatures that are as different as a horse and a zebra.
Just as a zebra and a horse both have four legs and run, mediated divorce and divorce mediation both (a) involve use of a neutral mediator, and (b) can be used to arrive at settlement terms of your divorce agreement. There, the similarity ends.
To understand why the rest of the processes are so different, one must first understand the basic issues and process involved in divorce.
Divorce has many legal aspects, but there are also many aspects of divorce that are more practical than legal. Many aspects of divorce involve changes that occur gradually over time. Some of these aspects are legal, but most of them are not. The process of divorce includes separating and detaching emotionally, separating financially, establishing new ways of shared parenting, and establishing two separate, independent lives once again.
Thus, the process of divorce involves separating and re-establishing boundaries, reshuffling of parenting plans and schedules, rearrangements of finances, re-titling of property. If one were to draw a list of steps, it might include: Increase in emotional and physical separation or distance -> A decision to separate ->
Following through on this decision by:
(a) physically moving apart,
(b) separating emotionally,
(c) separating finances, figuring out how to support two separate households utilizing income that used to support just one,
(d) reaching a fair property settlement,
(e) reaching some sort of solution with regard to how to parent children -> and then …
(f) creating a new legal status that is “divorced” rather than “married.”
As you can see, Items (a), (b), (c), (d), and (e) listed here are not really “legal” issues per se. They are practical issues with regard to deciding “what will the new arrangements be?” The difference between “mediated divorce” and “divorce mediation” has to do with how these middle items are decided. Will you decide, or will lawyers direct a process that disempowers you and places the lawyers and judge in charge of those arrangements and decisions?
This is why it is so important for people to understand the difference in paradigm. In a true, mediated divorce, the Mediator will direct the process, but it is designed to keep the parties in control of their own decisions, applying their own values, to reach their settlement agreement. Once this agreement is reached, then the last step is the legal part, to ask a judge to review and approve the divorce settlement for fairness and to grant the divorce on the appropriate legal grounds. Now that the difference in paradigm has been exposed, what is the difference in process?
If a person goes to see an attorney and tells that attorney they want a divorce, the attorney likely will assume that the parties want a judge to decide most of these issues for them, particularly (c) through (e), and likely including the terms of (a). The attorney most likely will, as a first step, file legal papers asking the court to decide these issues. This legal paper, called a Complaint, creates a lawsuit which is set up as Party A versus Party B. This is what is called a “litigated divorce.” When someone serves or says they have been served with papers for divorce, the “papers” they are referring to is the Complaint and its accompanying paperwork. This initial filing of a lawsuit sets the parties up as adversaries in a battle that is played out, ultimately, in a courtroom and which asks the judge to make the decision as to how all the issues will be decided.
A mediated divorce follows a different process entirely.
Mediated Divorce: In a mediated divorce, parties hire a neutral mediator who guides them through discussions and factual investigations designed to help them understand the issues, know their options, and reach agreement on every single one of these issues voluntarily. The mediator seeks to empower the parties to make their own, best decisions and reach authentic agreement, so that there is no need to ask a judge to decide their personal affairs for them. The emphasis is on joint problem solving and on finding solutions that both parties feel are fair and sustainable for both parties and for the children. After agreement is reached, a contract is drawn up which lays out the terms that have been agreed upon. Only after those terms are agreed upon do the parties file papers and go to court to ask the judge to review their agreement and finalize their divorce. The resulting court action is adversarial in name only. The court system requires one person to file papers and be the Plaintiff, but after the terms of a divorce have been fully mediated and both parties are in agreement as to the terms of their settlement, there is nothing (or very little) that remains in contention.
When the parties use a mediator to arrive at the terms of their separation, this is called a “mediated divorce” (in contrast to a litigated divorce). When the parties ask the judge to decide (using “litigation”), then it is called a “litigated divorce.”
Some may ask, “Why is a mediator needed?” The answer is that a mediator is needed because most people don’t understand all the issues that need to be decided. Additionally, most people need some help from a neutral person to act like a referee and help facilitate communication. (After all, if the parties got along perfectly they would probably not need the divorce.)
Litigated Divorce: As soon as legal papers have been filed, the parties have already been placed into the adversarial mode of “A versus B.” In approximately 95% of litigated cases, the parties reach agreement prior to going to trial. Because the case is being prepared for trial, the lawyers (who are experts in the trial process) must manage the gathering and presentation of reliable, probative evidence to present to the judge. The lawyers must also anticipate what evidence should be excluded from the trial. After the lawyers prepare their case for trial, they use a creature called “divorce mediation” to negotiate a settlement. A more accurate description would be to call this a mediated settlement conference, which is the term most mediators use for it. A mediated settlement conference uses a neutral mediator to facilitate negotiations between the two sides of the lawsuit, both of whom are represented by attorneys in the negotiations. The emphasis is on “settlement of a lawsuit,” rather than a process of exploration of options and working together to find a sustainable resolution. The lawyers manage the mediation, with the mediator going back and forth with settlement offers. Much depends upon the negotiation style of the attorneys, as well as the fact that with many more professionals in the room the cost per hour is much higher. Divorce mediations in the context of litigated divorce, therefore, tend to be high intensity, high stakes negotiation sessions rather than brainstorming and problem solving sessions. With their professional emphasis on preparation for trial and being focused on the impending hearing before a judge, attorneys naturally also place emphasis on “what would a judge do,” rather than allowing their clients to engage in a co-operative quest for mutually satisfactory solutions. After all, the attorneys are focused on “winning,” and they are eager not to let their client lose any potential trial advantage. Additionally, because judges only have a limited range of options available to them, the focus tends to be on those options rather than on the many other, creative types of arrangements parties might choose if they were to think “outside the box.” For obvious reasons, the attorneys prefer to inject significant management into what their clients say and do in mediation, in an effort to avoid prejudice in the event of an additional trial. These differences in process and in focus change the entire flavor of the mediation, making it more like a zebra and less like a horse. You may be able to ride a zebra, but it is not the same as a horse.
There will be some who take issue with this characterization. Certainly, just as there are variations between types of horses and types of zebras, it is not completely fair to say that this brief description is true for every case. Yet, for the most part, in a truly “mediated divorce,” the parties are not pitted “against” one another during their divorce negotiations. It is fair to say that in most cases that are already in court the parties clearly are already adversarial. The difference affects almost every aspect of the case.
In an earlier blog post, I described the mediator in a mediated divorce case as being like New York City taxi cab driver, helping to guide the parties through a confusing landscape to get them from point A (married) to point B (divorce) with as little collateral damage as possible. In a case guided by a mediator before the parties have filed divorce papers, the mediator will seek to empower the parties to cooperate, will encourage them to share information, and will help them act as a team to find solutions that feel fair and w hich will work for everyone in the family. Thus, even though the parties are divorcing, use of a mediator can act as a bridge to help the parties formulate the best possible solutions available for their family in the changed circumstances. This does not mean that the question “what would a court order” is irrelevant. What a court would order is a good measure of what is objectively “fair.” However, there are other ways of measuring fairness, too. In many cases what a court would do is a very appropriate measure of fairness. However, sometimes the parties themselves also decide that there are reasons to justify doing things differently.
There also are cases where mediation is not appropriate. Mediation is not a way for one party to get their way at the expense of the other. Both parties must demonstrate a commitment to principles of fairness. If one party doesn’t care about fairness, then the other party will need the protection of the Court to enforce those principles.
The different role of lawyers in mediated divorce also does not mean lawyers are not needed or are not involved. In a mediated divorce, parties are encouraged to consult with their attorney for advice and feedback. After all, lawyers are experts in what the law is, and what the law says is relevant. The difference is that, in a mediated divorce process, lawyers are consultants rather than stage managers or directors who manage and control a case. Additionally, after the parties have arrived at a settlement they both feel is fair, there will still be a need for that settlement to be reviewed for fairness and completeness by attorneys. The settlement will need to be drafted into the form of a written contract. And then, after this contract is executed, attorneys will be needed to manage the legal process that is necessary to get the settlement reviewed and approved by the court and to have the divorce finalized.
Some readers might ask, “why use a mediator when I’ll need to use an attorney anyway?” The answer, hopefully, is apparent at this time. The role of the mediator is different from the role of attorney. The attorney focuses on the legal process. The mediator’s role is not legal, but rather to help the parties to reach a full and fair agreement, hopefully prior to the start of the legal process. The cost-effective side of divorce mediation is that the mediator is focused on reducing conflict. The adversarial process, in contrast, sometimes can increase it.
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