By Mediation Divorce, Attorney B. Daniel Lynch Published: Mar 30, 2006
In mediation, the spouses maintain control and make all the decisions, instead of relying on a judge or court commissioner to do so. Issues are resolved much sooner, at a far lower cost, and with much less stress. The resulting Marital Settlement Agreement is the product of a careful and deliberate process of decision-making by the parties themselves. Before signing the MSA, each spouse reviews the MSA with an attorney (many family law attorneys will provide this service for a relatively nominal fee). This contrasts with divorce court, where the parties and their attorneys squabble about each issue for a year, or several years, until just before trial. Then, under pressure of the impending trial, the two attorneys put together a settlement consisting of a patchwork of compromises not satisfactory to anyone. In mediation, the spouses negotiate in a cooperative atmosphere under the guidance of a trained, experienced mediator. The parties agree on spousal support, child support, a realistic and well-thought-out parenting plan, and the division of property including retirement pensions (such as QDRO, 401(k)’s, IRA’s, and SEP’s). Both parties are heard, and all issues are addressed in a calm and businesslike way. By avoiding court fights over property, parental rights, and support issues, the parties can preserve a relatively amicable relationship, which is especially important where there are minor children. During a divorce, the sad fact is that children are often damaged in ways that parents do not even suspect. See “Helping Your Kids Cope With Divorce” by M. Gary Neuman, L.M.H.C., Random House, N.Y. In divorce court, the children often become pawns in the parents’ fighting over child support payments, and are pitted by one parent against the other in attempting to gain some advantage in the courtroom battles. By the end of a divorce court case, the parties are often more distrustful and hostile to each other than they were at the beginning. The prospect of good faith cooperation regarding future child rearing has been greatly diminished. As to “winning,” even if the case goes to trial, neither party will gain lasting satisfaction or vindication. What the court process mainly produces is stress and distraction from what is needed, i.e., cooperation in transitioning from the one old family to the two separate families, and the rebuilding of relationships. By contrast, in mediation, the court case is held in abeyance while the spouses participate in a series of private negotiation sessions facilitated by a trained and experienced mediator in a calm atmosphere. The interests of children are carefully considered as the parties work together to develop a co-parenting plan that will be most beneficial for all. The spouses are prepared for their new separate lives, developing a new relationship based on cooperation and good faith, and concern for the welfare of the children. Economic decisions are collaboratively made for the maximum conservation of family resources. Lastly, in mediation the spouses work together to achieve a reasonable settlement that the whole family can live with.