THE BLOG

What Most People Don't Know About Divorce Mediation

01/24/2012 12:59 pm ET | Updated Mar 25, 2012

Despite divorce mediation's well-deserved reputation as a sensible alternative to fighting it out in court, we find that few people know very much about it.

Divorce mediation is not all that the public seems to think it is. This post aims to clear up some of the common misunderstandings associated with it.

Divorce mediation is for reasonable people who cannot resolve their differences by themselves.
As divorce lawyers, we regularly receive phone calls from prospective clients who explain that they and their soon-to-be exes are seeking a divorce, and that they have already reached a settlement on their own. They go on to tell us that they want to use mediation to conclude their case.

We tell them they do not need a mediator. Instead, they should be looking for a lawyer to shepherd their settlement through the legal system. Their situation does not belong in mediation because mediation helps people resolve disputes; and these callers do not have a dispute, they have a resolution of their dispute. They already have the best that mediation could ever give them. If their wish is to save time and money, their best bet is to take their settlement straight to court for a judge's approval.

Divorce mediation is an out-of-court dispute-resolution tool that helps people settle their differences sensibly and with the legal system having only minimal involvement.

It provides a structured process that minimizes the defensiveness and friction that are normally present during spousal settlement conversations. It does this by creating a non-confrontational atmosphere that encourages the spouses to put their best foot forward when they are presenting their thoughts and concerns to one another.

Mediation employs the use of a neutral and impartial third party -- a mediator -- to help the disputants reach a peaceful compromise that they can both find acceptable.

Mediators are not referees, judges, or arbitrators and they cannot make decisions regarding who is going to win or lose. Their only job is to guide the parties during their negotiations, just as air traffic controllers guide air traffic.

We must be at our very best if we hope to persuade our partner to agree to an out of court settlement that he or she is typically inclined to resist. Accomplishing this is often difficult because divorce tends to put us at our worst. This is where the mediator comes in. He or she directs the interaction and dialogue away from potential negotiation hazards and makes it possible for us to be at our best.

We have all heard of friends, family, or coworkers who have gone through divorce mediation with great success. As mediators ourselves, we certainly attest to mediating many successful divorce resolutions. However, we have our reservations about the effectiveness of mediation during the early stages of divorce.

For mediation to be successful, both disputants must be reasonable people who are motivated to negotiate a final settlement. However, this is not what usually happens during the early stages of divorce.

In the initial phase of most marital break ups, emotions often hinder the participants' ability to be reasonable. In addition, it is also very common for only one partner to be ready to divorce.
He or she wishes to begin settlement negotiations, and the other party wishes to work on saving the marriage. This difference in motivation tends to stymie the chances of mediation's success. It is extremely difficult to negotiate a price with someone who is dead set against buying the item at any cost.

The mediation clients with whom we have had successful results during the initial stages of divorce are the exceptions to the general rule. These are the extremely reasonable people with workable factual situations who are highly motivated to reach a cooperative divorce. Our role as mediator usually involves only minimal guidance to assure the couple that their settlement proposals cover all the bases and do not omit any items of importance.

Many people see mediation as an end-all, attorney-free process. However, in most instances, those with a mediated settlement still have to hire at least one attorney to process the divorce through the legal system. In addition, mediators are trained to recommend to both parties that they consult with their own attorneys before formalizing any agreement reached in mediation.

Divorce mediation is not for every couple, and it is not for every situation. However, it has no down-side and can help people save time, energy, and expense, not to mention wear and tear on the family unit.

J. Richard Kulerski and Kari L. Cornelison are partners in the Chicago area, Oak Brook, IL divorce law firm of Kulerski & Cornelison. You may find them at www.civilizeddivorce.com and at their firm's blog dupagedivorcelawyerblog.com.

Follow J. Richard Kulerski and Kari L. Cornelison on Twitter: www.twitter.com/Chicago_Divorce