Although divorce mediation has been available as an option for couples for quite some time, there remains a lot of confusion around this subject. Part of the problem is that the mediation community has not done a very good job over the years of letting the public know about this viable alternative to divorce litigation. More importantly, though, the matrimonial bar – lawyers who make their living representing clients in contested divorce matters – are overwhelmingly opposed to the concept of divorce mediation. And it’s understandable why they would be: they fear that mediators will take clients, and income, away from them. And being most comfortable and familiar with their litigious approach to settling issues (“I win, you lose”), they often cannot comprehend how mediation could serve their clients.
I personally have known both worlds – that of the traditional lawyer and, in more recent years, that of the mediation attorney. And I much prefer the results I am able to obtain for my clients in my capacity as mediator – so much so that I have chosen to work only as a mediator in the matrimonial arena.
There are good reasons why divorce mediation can be beneficial for many couples, and why couples can reach better results with mediation than if they had gone the litigation route. In mediation, the couple makes their own decisions, at their own speed, without being subject to the whim or will of their attorneys or judge. The process is entirely voluntary and may be ended at any time by one or both of the parties. The mediator, as a trained neutral, is there to facilitate the difficult conversations the parties need to have and to help them constructively explore their various options.
This approach encourages more of a give and take between the parties, so that instead of it being a win-lose situation, you end up with more win-win results. And especially when there are children involved, after going through the mediation process the couple has learned valuable ways to communicate with each other and their children as they all move forward with their lives.
That’s not to say that mediation is for every couple. If there’s a history of domestic violence, intimidation, or an extreme imbalance of power between the parties, then a more structured court setting may well be necessary. But even with an imbalance of power – as long as it’s not extreme – an adept mediator can often handle this situation by ensuring that the voice and concerns of the weaker party are heard.
Some divorce litigators claim that mediation is not the best arena when feelings are very “raw” and there are highly charged emotional issues under discussion. But, in fact, the reality is just the opposite. A good mediator has experience in handling this situation – by understanding that there is a place for anger in the process, allowing the parties to vent their strong emotions, and then ultimately guiding them back to a more neutral place. Although this dance may be repeated many times as the mediation sessions move forward, typically by the end of the process the intense anger has been dissipated and the couple is able to relate to each other on a much more even keel. Ultimately they, and their children, will have benefited immensely from pursuing a mediated settlement to their divorce.