Sandwich, MA 02563
Patrick Morris, Esq.
EIGHT MYTHS OF DIVORCE MEDIATION: December 1, 2016
Even though divorce mediation has become somewhat “mainstream,” many people continue to hold on to a perception that mediation can’t work or won’t work in their situation. Additionally, many people still misunderstand what mediation is and how it works. The following article by noted mediator Joanne Newman examines the “eight myths of divorce mediation.”
1. I’m all for mediating, just not with that son of a “gun”
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 can you possibly work together on an agreement?
This is where the 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 decisions you both think are fair.
2. The legal profession objects;
In the 1970’s, when private divorce mediation began, bar associations were opposed to the idea of divorce mediation. By 2000 the ABA 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.” (It is true, however, that certain member of the divorce bar do not advocate divorce mediation as deprives the divorce attorney of revenue derived from a traditional, contested divorce.)
3. I can’t choose a mediator: I can’t tell the good from the bad:
It is true that no state in the country requires a private mediator to be licensed or certified. But there are ways to determine a good mediator. A good mediator should have and be willing to show you the following:
a. A strong knowledge of the state’s divorce laws.
b. A graduate degree in the law; i.e. a licensed, experienced divorce attorney/mediator.
c. At least 60 hours of mediator training. The more the better.
d. A commitment to follow the Model Standards of Practice for Family and Divorce mediation.
4. A mediator is pressuring me into saving my marriage.
False. Mediators are not couples therapists. Their job is not to reunite you. They focus solely on helping you come up with a divorce settlement which is fair to both parties.
5. I’ll be winging it with the family’s assets.
Wrong. In mediation you thoroughly analyzed your family’s assets just as you would in a traditional divorce. If necessary outside experts: appraisers, accountants, and tax attorneys are used to calculate your family’s net worth and to give you a realistic basis on which to divide your assets.
6. The courtroom is the best place to fight for my kids.
This myth is understandable. Both parents want custody of the kids. How on earth can a mediator find a middle ground on this issue?
The fact is that if you fight this battle in court your kids are in the middle. It is a no win situation for the children. In mediation the parents come to realize that they have an ongoing role as co-parents. The have to be on the same side for the kids. The result: after actually communicating with their spouse, with the assistance of the mediator, reason tends to win out over emotion. Parents come up with a parenting plan which they’ve jointly agreed on. Research shows that parents who mediate have a better long-term relationship with their children.
7. Mediation is always the best way to go.
This is not always the case. There are circumstances in which mediation is not the right way to go.
a. If there is physical or emotional intimidation by one party which makes it impossible for the abused spouse to negotiate reasonable;
b. If a party’s judgment is impaired: drug use, alcohol use, mental impairment.
c. A spouse is hiding assets and will not be open on this issue to the other spouse.
8. Mediation means I’ll have to settle for less; I want to go to Court and take my spouse to the cleaners.
In community property states and equitable property states, the Courts MUST split the couples assets equitably. This is by law. So whether you mediate and divide your assets evenly, or litigate, and have your assets split equally by the Court, the result is exactly the same. With one very important difference: in mediation you have both spent a few thousand dollars on mediation fees; in litigation you have spent an unlimited amount of money to achieve the same thing. It just makes sense to spend less on lawyers to split those funds for the use of the family.