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Eight Myths of Divorce Mediation

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Traditionally couples divorce as adversaries, hiring separate attorneys to wrangle over child custody and support, maintenance, assets and anything else they care about, even the dog. It's high stakes poker. Ante up: legal costs, kids, stress.

But there's another way. Increasingly couples are turning to divorce mediation as a realistic and healthier alternative. A couple meets with a mediator to hammer out an agreement covering all the terms of their divorce, including finances and child custody. This usually takes six to 10 sessions and costs roughly $5,000. As a litigator and mediator I prefer to mediate, if appropriate. It's faster, cheaper and, most importantly, less acrimonious, which is less damaging, not just for a couple, but also their children.

The problem for some -- and you know who you are -- is that the idea of mediation still carries with it the perception that it's too touchy-feely to work; there's the whiff of Birkenstocks and herbal tea. Soon you'll be holding hands and chanting Om.

Eight myths about divorce mediation:

1. I'm all for mediating -- just not with that *&#$@

No myth has a greater tug. You can't stand being in the same room with your spouse, you can't get past hello without an argument, so how are you supposed to work together on an agreement?

This is where a mediator comes in. The mediator keeps your conversations productive and focused when you find yourselves fighting the same old battles. And the mediator steers you toward making rational decisions you both think are fair.

2. The legal profession objects

In the 1970s, when private divorce mediation began, bar associations denounced it.

By 2000, the American Bar Association had embraced divorce mediation to such an extent that they collaborated with national mediation groups to devise the Model Standards of Practice for Family and Divorce Mediation.

3. I can't choose a mediator -- there's no way to tell the good from the bad and the ugly

It's true that currently no state in the country requires a private mediator to be licensed or certified. So theoretically your tailor could hang out the shingle: "Hems and Divorce Mediations."

But there are ways to determine a good mediator. Does the mediator you're considering have:

  • A strong knowledge of the state's divorce laws (mediators can't give legal advice, but can give you legal information)
  • A graduate degree in law or a mental health profession
  • At least 60 hours mediation training -- the more the better
  • A commitment to follow the Model Standards of Practice for Family and Divorce Mediation: www.afccnet.org/pdfs/modelstandards.pdf

4. No do-gooder mediator is pressuring me into saving my marriage

Mediators aren't couples therapists. Their job is not to reunite you. Mediators focus solely on helping you come up with a way to separate that you both think is fair and workable.

5. I'll be winging it with the family's assets

In mediation you thoroughly analyze assets just as you would in a traditional divorce. You bring in outside experts such as accountants, real estate appraisers and tax attorneys to calculate your family's true net worth, so you have a realistic basis on which to divide your assets.

6. The courtroom is the best place to fight for my kids

You want to do everything to protect your access and relationship to your children. But when you wage a court battle, you put your kids in the middle. They're the ones in the no-win situation.

As a mediator, I have found that custody mediations are frequently transformative. Parties deal with the fact that they'll have an ongoing relationship as parents. And they realize that when it comes to the kids, they can be on the same side. The result? Parties come up with a parenting plan they've jointly agreed on and gain tools to communicate with each other about their children. And research shows that parents who mediate have a better long-term relationship with their children.

7. Mediation is always the best way to go

There are times when mediation is not appropriate:

  • There is physical/emotional abuse
  • Judgment is impaired (i.e. drug/alcohol addiction)
  • A spouse is hiding assets

And if despite your best efforts, you find mediation isn't working, you can stop at any point and proceed with a traditional divorce.

8. Mediation means I'll have to settle for less; I want to go to court and take my spouse to the cleaners

"Elin Nordegren Gets $750M, Custody of Kids in Exchange for Silence"

Seeing headlines like these, who doesn't think that hiring a $1,000-an-hour divorce attorney is the best way to get what you deserve? But in reality, divorce isn't a winner-take-all sport. In community property states (like California) courts have to split marital property down the middle. In states that don't have community property laws (like New York) they split assets equitably.

It has been shown that parties generally end up dividing their assets along the same lines regardless of whether they mediated or fought over them in court. So unless your spouse is a superstar with paparazzi problems, waging an expensive court battle means only one thing for certain -- you're reducing the assets that you're battling over.