Category: Mediation
Questions/Answers
Can a mediator give advice or tell me what to do?
While some couples who seek mediation are really looking for someone to tell them what to do an ethical mediator will never make decisions for you or provide advice, even when explicitly asked. If you are seeking advice, you need the services of an attorney who will be your advocate and not a mediator who must remain a neutral third party.
What is co-mediation?
It is when the spouses opt to use two mediators. This is more likely to occur in long distance mediation or in situations where the parties wish the mediators to be of different sexes or of different disciplines (e.g., one lawyer and one health care professional).
Can I Get a Divorce If I Donít Know Where My Spouse is?
Yes. The Court has jurisdiction to go ahead and dissolve the marriage by virtue of your residency within the state. However, it cannot order your spouse to pay or do anything until it gets jurisdiction over your spouse. Once your ex is located and lawfully served with Summons, the court may revisit the initial divorce case and make its rulings on all of the remaining items.
Can divorce mediators give legal advice?
Mediators do not give legal advice, but do give legal information throughout the mediation process. Providing information allows the parties to make the most informed decisions for their futures as possible, while not impinging on mediator neutrality. The focus of the mediator is to facilitate communication and resolution among the parties in conflict. It is not one of saying what is best. The focus of the resolution process is to minimize conflict and find the best solution for all parties. Mediators are neutral participants in the process. Those participating in mediation are encouraged to seek outside legal advice from a licensed attorney, to ensure rights are protected. Should an attorney make recommendations contrary to the mediated agreements, the issue can be brought back up for further discussion in mediation.
How do you determine if your state certifies its mediators?
The South Carolina Bar provides certification for its Family Court and Civil Court mediators. There is a 40 hour training class, which allows for class instruction, role playing, written materials from experienced mediator-instructors. You can check out the website or call to confirm if a mediator is certified.
Why Use Divorce Mediation?
The decision to divorce is difficult and painful. Prior to this decision are often months - even years of differences which could not be resolved. There have been arguments and angry interactions which have affected the couple and the children. Now when you are at a point where communication has broken down and each party is unable to come to an agreement Divorce Mediation can help.
Is Mediation Private?
A low cost alternative to traditional high-conflict divorce proceedings, mediation provides an environment free from scrutiny of the general public and federal government. If you have a cash-based business, or just want to keep the details of your financial matters private, then consider this alternative. Judges presiding over litigated divorces must report financial wrongdoing, such as the sheltering of income to avoid taxes. These matters are typically uncovered and documented in a traditional divorce. In states like New Jersey (the Uniform Mediation Act protects your Agreement as privileged), statutory law protects mediation proceedings from being used as evidence in court. Ultimately, your right not to disclose the very private nature of your divorce is protected, subject to some specific limitations.
How do you stay neutral as mediators if only one person calls?
As mediators, weíre trained to discuss your situation in a neutral way with both sides. Typically our Dispute Resolution Associate (DRS) has at least one telephone conversation with each party prior to your first mediation session because itís important that everyone involved has confidence in the mediation process. In this way we are careful to avoid appearing to side with either party or the other. By having a neutral Dispute Resolution Associate speak with both parties before the mediation begins, youíll get a chance to let us know your situation without feeling like whoever spoke to the mediator first will be "the favorite" in the mediation session.
Can I mediate if Iím angry with my spouse?
Anger is a normal feeling during divorce. If you didnít feel angry there would be something wrong! Usually, one person has been unhappy & angry for a period of time. The other is often in shock and has to deal with lots of emotions - sorrow, fear and certainly anger. Whether you or the other is the angry one, itís never easy. Anger builds up without your knowing it Ė and will cause you (or your spouse) to lash out. Anger can be expressed in mediation and in is a valuable tool for a mediator to use to shape a better divorce agreement. In mediation anger is a clue that something important has not yet been expressed. It must be explored and understood. I want to hear how they are feeling and to understand why they are angry. In mediation, anger gives us a key to use to shape a divorce agreement.
What Happens if We Donít Agree in Mediation?
Even if you cannot agree on everything, youíll probably agree on some things. Each issue resolved in mediation translates into less time in court, less legal fees, and less aggravation. And, for the issues you could not agree upon, at least you understand what those issues are, and where you stand. At minimum, youíll feel like you tried your best to reach an agreement before resorting to court intervention. Sometimes new information, proposed solutions, or the passage of time make it possible to resolve a previous disagreement, so even if you donít resolve your issue immediately, you may be able to resolve it later, without going to court. Because mediation is flexible, youíre free to schedule additional appointments at any time. Youíre also free to stop the mediation if you donít feel youíre making progress toward resolution.
Why canít the Divorce Mediator just decide whatís fair?
As you well know, if you go to court, the judge will certainly decide what he or she thinks is fair. Unfortunately, what is fair to the judge is not necessarily what will work for you. Mediators have no power to make decisions or awards for divorcing couples. Your mediator is there to help you make decisions that you consider fair and equitable.
What if my spouse is domineering?
^$<y(tediator pays attention to the way couples interact and is trained to recognize any power imbalance between them. If one spouse wants to "give away the farm" just to get out of the relationship, or if another spouse continues to display dominating behavior, we will use specific methods to "re-level" the playing field. This does not imply that the mediator will choose the side of the weaker participant, but simply try to minimize dominant behavior and help everyone involved make informed decisions.
What If I have already been to an attorney?
The hiring of an attorney does not preclude you from mediating. Your mediator is not an attorney, and will not give legal advice to you or your spouse. You should contact an attorney for legal support when necessary, especially when considering the legal ramifications of any decisions that you are considering. Since you are mediating, your attorney should not be acting in an adversarial capacity but in an advisory capacity, offering you counsel when you need it. If you wish, you may have your attorney present during your sessions. Remember that if you go to court, the costs of your attorney preparing your case and presenting it to the court can exceed the cost of mediating by many times. Even if you already have a court date set, you can still mediate in advance and avoid having a judge make an undesirable decision.
How does Divorce Mediation work?
You will meet together to work out the major decisions raised by the decision to divorce. Your mediator will help identify the issues you need to resolve, and help guide you through the decision-making process toward agreements that really work for both of you. The mediator will then draft a Memorandum of Understanding for your review, after which it is given to an attorney for the purpose of drawing up a separation agreement. The separation agreement then becomes the basis for an uncontested divorce.
What are the advantages of Divorce Mediation?
Mediation is generally less time consuming and less costly than the adversarial process. Agreements reached in mediation tend to last longer than decisions imposed by a court because they are mutual and take into account the needs and wishes of both parties. The process is voluntary, cooperative and confidential. It is especially useful for families with children as the process enhances and encourages a spirit of cooperation as couples will be co-parenting children from separate residences.
Who is Mediation for?
Mediation is an excellent choice for those who have made the decision to divorce, those who simply wish to only separate, and those with issues that occur after the separation or after the divorce is final are all candidates for mediation. Mediation is great for couples who are agreeable, but it can offer tremendous advantages to those who are in disagreement. A little hurt and anger can actually help the process along because in many cases it causes the participants to empower themselves and stand up for what they believe. Many couples who have poor communication skills and are in high conflict are amazed at the success they have had at the negotiating table. Mediation is not for those engaged in any type of physical abuse and you are encouraged to seek immediate protection and legal advice.
What is divorce mediation?
Divorce mediation is a process in which a neutral, impartial third party, facilitates your discussion and agreement of the issues associated with developing an effective parenting plan and the equitable distribution of assets and liabilities. In a calm and comfortable setting, the mediator helps you explore various solutions and find common ground so that an agreement may be reached. To keep the process moving in a positive and productive manner, he will encourage you to voice your needs and perspectives while keeping you focused on the issues. The overall goal of your mediator is to assist you in developing a satisfying, comprehensive agreement that meets the needs of all those involved. especially the children.
Why Mediate?
You will maintain your dignity. You will experience the challenge of working with your spouse to make the best of a bad situation. If you can not save the marriage, save the divorce. There is such a thing as a good divorce and this can be discovered only by staying out of the courtroom.
Can I mediate if one or both of us is very angry?
Anger is a normal feeling to have during a divorce. Whether you are the angry one or are dealing with an angry (ex) spouse, itís never easy. Anger often builds up without conscious awareness, and the anger can cause you (or your spouse) to lash out. Anger can be expressed in mediation and is useful for a mediator to help shape a better divorce agreement. In mediation, anger is a clue that there is an important piece of information which has not yet been expressed, and which must be explored and understood. Anger tells a Mediator that someone has important needs which are not being met. When someone is angry a Mediator wants to hear how they are feeling and wants to understand why they are angry. In mediation, anger gives us a key to use to shape a divorce agreement.
What are the essential elements of a good mediation agreement?
The agreement should address the following: 1. Your name, your spouseís name, and the mediatorís name. 2. The disputed issues to be resolved during the mediation process. 3. A clause explaining the mediatorís role or significance during the mediation process. 4. How legal rights, court interpretation, and lawyers will play a role. 5. The use of experts, like accountants, counselors, etc. 6. Confidentiality. 7. Who shall be present at the mediation sessions. 8. Will there be individual sessions with each spouse. 9. How long the sessions will be and how often they will transpire. 10. How will the mediator prepare an agreement memorandum for the lawyer. 11. How will the spouses pay for the mediation service. 12. How to terminate the mediation process and what happens if this occurs.
How do I introduce the option of mediation to my spouse?
1. Make sure there has been a "cooling off period". 2. Clearly state your willingness to negotiate a fair settlement. Express your wishes of an amicable divorce. 3. Propose that you both at least give it a try. You both deserve it as well as the kids. 4. Emphasize all the advantages.(time. money, stress, confidentiality, etc.) 5. Provide educational material about mediation and how it works. Allow your spouse to read this book.
Helpful Tips and Facts
How to Propose Divorce Mediation to Your Spouse
You may believe that mediation makes sense for settling your divorce quickly and inexpensively. But that is not enough. What about your spouse? Is he or she at least willing to consider the pros and cons of your two divorce options -- litigation or mediation? Or does he or she still hope that your marriage can be salvaged? Divorce mediation works only if both of you are emotionally ready. In other words, you agree that your marriage is over. So, the next question is -- who should talk with your spouse about divorce mediation? It is better if that person is someone your spouse trusts Ė for example, his or her pastor or attorney. If that is not possible, that person could be a mutual friend who has either participated directly in divorce mediation or heard about it.
Conflict Resolution Behavior Styles
Conflict resolution behavioral styles, however, are often learned responses.† Our temperament, or the way we simply are wired also makes a difference. Conflict resolution behavioral styles are 1. Avoider 2. Collaborator 3. Accommodator 4. Compromiser; 5. Control/compete.
Communicating and Responding to Conflict
We all have different ways we respond to conflict.† Much depends on the situation.† The higher the stakes, the higher the defenses might be.† The more intense the emotions are, the longer the length of conflict. We will respond differently to people we love and care about from people we work with.† We may hesitate to address an issue with someone we care about because of concern of hurting them or fear of rejection.
What Can Happen Outside Mediation
In addition to the time spent with a mediator, each party may need to gather information in order to make informed decisions. Some people benefit from meeting with a certified divorce financial analyst, mortgage broker, life coach, and/or an attorney. Although most people do not have a lawyer represent them at mediation or when filing an agreement with the court, it is encouraged to have agreements reviewed by an attorney before signing any documents.
Choosing a Mediator
Choosing a mediator carefully is very important, and not all mediators are the same! Many are highly trained, experienced, professional mediators who have been practicing mediation successfully for many years. Some however may be brand new mediators who "just got trained last weekend". There is no licensure of mediators in New York state at this time, but there are accredited mediators. How to choose? Ask! Interview 2 or 3 mediators before you start; many will provide a free initial consultation. Ask how long they have been practicing mediation and how many cases they have handled this year. Ask if they are an accredited mediator (e.g. The NY State Council on Divorce Mediation has a list of itís accredited members).
Litigation Versus Mediation
The division of property and custody will be based on: how aggressive your lawyer is compared to the opposing lawyer, the mood the judge is in, the prescribed court schedules, and whether you or your spouse has more stamina for battle. Versus with the help of a neutral mediator, you will problem solve property and custody issues to design an agreement that works for you and your family.
Mediation Wonít Work For These Kinds Of People
Mediation is not right for everyone. Experts agree that about 15% of the cases involve high conflict personality types (Borderline, Narcissistic, Histrionic and Antisocial). Those kinds of people want to fight. They need the drama and chaos that IS our adversarial system. Mediation is also not right for people who are hiding income or assets. Dishonest people will not deal fairly with their spouse which forces the honest spouse to hire an attorney to do discovery in order to uncover hidden information.
How To Find A Mediator
The phone book is full of divorce attorneys. How do you know who to trust? When looking for a mediator it is best to avoid the wolves in sheepís clothing. You do not want an attorney who primarily practices adversarial law. While it is best to use a mediator who is an experienced lawyer so they can give accurate legal information to the couple, you want to use someone who focuses primarily or better yet, exclusively on mediation instead of litigation. Ask the mediator how many mediations they have done (the more the better), what their success rate is, how long it takes and the cost. Then compare the answers to see who the two of you like best.
Seven Rules of Divorce Mediation
1. Regardless of what your spouse does, take responsibility for your own behavior. 2. Separate your emotions from your reason. 3. Separate your parental responsibilities from your problem marriage. 4. Accept your share of responsibility for the divorce. 5. Try to see your spouse’s viewpoint. 6. Be willing to compromise. 7. Strive for an equitable and nonadversarial settlement.
Taking Control of Your Own Divorce
Sometimes in the heat of battle, lawyers take charge, and the spouses become passengers. Mediated divorce keeps the spouses in charge.
A Better View
It is often said that spouses negotiating their own settlement are too deep in the forest to see beyond the trees. A third party to shine a little light on a divorce situation may lead to a quicker settlement with less emotional trauma with minimal legal fees.
Your Spouse Wonít Consider Mediation
Mediation is the most popular option for Alternative Dispute Resolution in the realm of divorce. If your spouse is not willing to mediate your divorce, you may want to consider a "cooling" off period, which will allow some tensions to lessen to the point where actually negotiating with a trained professional mediator becomes of interest. The shock of legal fees alone will often steer couples to mediation.
Trying Divorce Mediation
If you and your spouse are heading down the path of an adversarial divorce it is often recommended and even required by many courts that you give mediation a try. A professional mediator often times has the ability to navigate you through the divorce negotiation process to reaching a final settlement.