Divorce Mediation

by Pamela A. Liberty

Mediation is not right for every couple seeking to divorce. For example, mediation is not equipped to address cases where a spouse is dishonest and trying to hide assets or where the goal of one party is to cause emotional or financial harm to the other.

For most couples, however, mediation makes good sense. It is far less expensive than litigation and the process is deliberately structured to be less adversarial. After more than 30 years of legal practice, almost exclusively in the area of family law, I have learned several valuable lessons about the way the traditional legal system impacts families going through divorce:

1. The adversary system is ill equipped to address many family law matters.

When one spouse files for divorce, (s)he typically does so by hiring an attorney to file a legal pleading. The responding spouse does likewise. From there, each party is represented by an attorney whose job is to obtain the best possible result for that client with respect to parenting time, child support, alimony and property division. A parent who never thought seriously about fighting for legal decision-making of the children may decide to do so as a negotiating chip in determining how property is divided. A spouse who has the ability to work may be warned that a high salary will reduce the alimony a judge may award. Painful or embarrassing matters may be dredged up and used to discredit one's opponent. Before long, parties to a litigated divorce become emotionally and financially invested in the fight, sometimes spending tens of thousands of dollars over issues that were not in controversy before the divorce was filed.

2. Many couples start out seeking to avoid divisive battles.

It is not unusual for a couple going through divorce to want to hire only one attorney. The rules that govern attorneys, however, do not allow this. Because the legal system is by definition adversarial, it is considered unethical for one attorney to represent both parties to a divorce. Instead, attorneys have been trained to zealously represent their clients' interests. When well-intentioned people are steered into a process that is highly adversarial, it is difficult to avoid feeling attacked and responding in kind. Before long, people who simply wanted to part ways can become bitter enemies. Many times, these are people who will share responsibility for parenting their children after the divorce is over.

3. Litigated divorce actions are unnecessarily expensive.

There are several steps an attorney will be required to undertake that are costly and, in individual cases, may be unnecessary. For example, even though you may feel that you know what assets you and your spouse have acquired during marriage, your attorney may feel that (s)he has a duty to research this independently. This may include issuing subpoenas or preparing formal written questions for your spouse to answer. There are legal documents that must be prepared and filed with the court in contested actions on a set timetable, such as disclosure statements, pretrial statements and motions. In actions involving expert witnesses, such as an appraiser to assess the value of your home, it may be advisable to hire someone whose expertise includes not only valuing real estate, but also testifying in court on a routine basis. These experts can be more expensive than others who may be equally adept at telling you what your house is worth, but less skilled at handling aggressive cross-examination. In short, you may end up paying top dollar for skills that, but for the adversarial nature of your divorce, have no value to you.

4. The adversarial system may exploit people who are vulnerable.

Many people who are not confrontational by nature become so in the context of divorce, and it is easy to see why. Rare is the divorce where neither party feels hurt or betrayed. Divorce involves the breaking of a promise and it is not uncommon for there to be bruised feelings. The adversarial system takes people who are already feeling hurt or betrayed, tells them that they must resolve their disputes in a process that is by nature adversarial, and arms them with advocates trained to do battle. It is little wonder that divorce can be so emotionally and financially devastating.

For many couples, mediation provides a better option. Couples getting divorced must be fully informed about their rights and presented with practical options for how to divide their property and share time with their children. But the process for doing so need not focus on winning and losing: it can and should be a process of information gathering and problem solving.

Divorce mediation involves the following:

  1. Written disclosure of assets, debt and income.
  2. Valuation of assets, using reasonably priced, qualified experts where necessary.
  3. Negotiation regarding the distribution of assets and debt in a way that best meets the needs of each individual in structuring his/her post-divorce need for financial security.
  4. Review of research materials addressing the needs of children of divorce where appropriate, in order to fashion a timesharing arrangement which ensures the child's continuing relationship with both parents.
  5. Calculation of child support and spousal maintenance, if appropriate, including allocation of available tax exemptions, costs of uncovered health needs of the children, and selection of a health insurance plan.
  6. Resolution of ancillary issues, such as current tax filings, division of available exemptions and deductions, responsibility for past due taxes and division of refunds, as well as the purchase of life and/or disability insurance to protect against unexpected wage loss.
  7. Preparation of all of the documents necessary to initiate and finalize your divorce.
  8. Assistance with transferring assets into the name of the spouse to whom each asset was awarded, including deeds, future pension benefits, vehicle titles, tax-deferred accounts ant the like.

What will mediation cost?

The fee for up to five two-hour mediation sessions is $2,000 per person or $4,000.00 per couple, plus filing fees mandated by the Court. This fee includes preparation of all standard paperwork necessary to initiate and finalize your divorce. Couples who resolve their divorce issues in mediation do not ever appear in court.

What is the time commitment?

Much of the work that needs to be done will take place outside of mediation. You will be provided with materials to complete regarding your assets and income and may also receive written materials on parenting post-divorce or, in particular cases, case law or other substantive articles. Although the length of time it takes to finalize a divorce depends on the complexity of the issues involved, mediation should generally be completed within two to four months.

Should all couples consider mediation as an alternative to litigation?

Mediation is not for everyone. It may be inappropriate where there has been significant domestic violence; where one party has an unacknowledged substance abuse problem or suffers from certain kinds of mental illness; or where either spouse believes or suspects that the other intends to hide assets or be untruthful about their value. The presence of conflict however, even deeply rooted conflict, should not be cause to eliminate mediation as an option. National statistics show that 3 of 4 couples who try mediation resolve their divorce issues through this process. At Liberty, Audette and Manzi, P.C., the percentage of couples who have been able to completely resolve their divorce action through mediation exceeds ninety-five percent (95%).

If you would like to learn more about divorce mediation, contact the law offices of Liberty, Audette and Manzi, P.C. at 520-322-9003 to set up a no charge one-half hour consultation for you and your spouse.

Divorce Mediation Resources

Prof. Robert Emery--Children Benefit When Parents Use Mediation
Longitudinal Study of the Impact on Children When Their Parents Divorce Using Mediation.

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