NINE REASONS TO TRY DIVORCE MEDIATION

By: William J. Leininger, J.D.

You've decided to seek a divorce. Your nerves are frayed; the in-laws are asking pointed questions; the children are beginning to act out; and your pleasantness is in the midst of an earthshaking landslide. What can you do? Clearly, you can hire a divorce attorney to serve your spouse with a Summons and Complaint for divorce. Or you could talk to your spouse and try to get your spouse 's agreement to try divorce mediation. Here's a checklist of reasons why working with a trained divorce mediator can often help:

1. It usually costs less.

2. You have control.

In Divorce Mediation the couple controls how quickly or slowly decisions are made, when the divorce Complaint is filed, and what the terms of the divorce will be in the Marital Settlement Agreement. Each step is by agreement, in contrast to the adversarial process in which attorneys set court dates and judges make decisions with very limited time and information.

3. Paperwork is done for you.

Many people try to do their own divorces these days, but run into difficulty trying to understand the laws and the complex paperwork involved. A mediator who is an attorney can explain the entire process to the parties, and even prepare a proposed Marital Settlement Agreement. In both New York and New Jersey, it is still ethically required that one party hire an independent attorney to act as that party's attorney and file the legal documents for a non-contested divorce.

4. Easier on the children.

The worst aspect of a divorce for children is the conflict between the parents. It will be traumatic enough for them, but they can heal knowing that their parents are working together to make adult decisions and will not put them in the middle.

5. You can still go to court.

When people use divorce mediation, they do not give up their right to go to court. If you are not satisfied in mediation, you can stop at any time, retain a separate attorney and have the judge decide the issues. What has occurred in mediation will remain confidential, so the parties can start fresh.

6. You get legal information.

In divorce mediation with an attorney-mediator, you will be provided with enough legal information to make your own decisions about what is fair. While an attorney acting in the role of mediator cannot advise either party, the attorney can share his or her general knowledge of how the court might address the issues in your case. Each spouse is also encouraged to consult with a separate attorney for legal advice, especially before signing a Marital Settlement Agreement.

7. Emotions can be managed.

Many people simply want to be heard and understood in the divorce process. However, on their own this can get out of control, as each person triggers anger and resentment in the other - often unintentionally. A mediator trained in counseling can assist the parties in acknowledging feelings but not allowing feelings to control the decision-making process.

8. It's confidential.

In private divorce mediation, all discussions and tentative agreements are confidential. This makes it safe to propose solutions for possible consideration without having them all thought out. This can lead to new solutions neither party had previously considered. Moreover, if either spouse has worked "off the books" during the marriage, the parties can be upfront about this fact with the divorce mediator since, unlike a Judge who usually has an ethical obligation to report the unreported income to State and Federal taxing authorities, a divorce mediator is under no such ethical obligation to report the unreported income to the IRS or State income tax bureau.

9. It builds on the positive.

The way your marriage ends will significantly impact the way you approach your future relationships. When you use a mediator to help both of you communicate and make important decisions, it can be easier to move forward and accept the past, rather than turning hurt and anger into an expensive court battle. In mediation, both parties are encouraged to recognize the positive in the other person and to find common ground for agreement. In court, each side must emphasize the negative about the other person in order to "win" against the other. Especially when there will be future contact between the parties, such as in parenting, whatever goodwill remains between the parties should be preserved and not destroyed!

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Picking a Divorce Mediator

Divorce Mediators are not yet licensed in either New York or New Jersey. We recommend that you use a Divorce Mediator who is knowledgeable about family law, family counseling, child development and the mediation process.

In picking a Divorce Mediator, we recommend that you pick an attorney mediator who is a member of the Academy of Family Mediators, which requires that its members have specialized training in divorce mediation.  Mr. Leininger is a member of both the American Academy of Family Mediation and the Family and Divorce Mediation Council of Greater New York.

While mediation isn't the only alternative to an ugly divorce experience, it is one to seriously consider. Make a list of pros and cons for your specific situation, and weigh the facts for yourself. The 10-15 minutes you spend on your list could well be worth the effort!