06 Nov 4 Myths About Divorce Mediation
Divorce Mediation has been an alternative to traditional divorce litigation for almost 50 years, and was denounced by bar associations until around 2000. By then, the American Bar Association embraced the practice, devising the Model Standards of Practice for Family and Divorce Mediation. Now, many couples wishing to divorce are deciding to divorce through mediation as opposed to litigation. And from our viewpoint, it makes sense. It’s cost-effective, less time-consuming, and you’re given the ability to work together with your soon-to-be ex-spouse and come up with an agreement that’s mutually acceptable.
Still, many couples choose not to mediate their divorces. In many cases, two parties looking to divorce simply cannot work together. In some other cases, couples don’t fully understand the Divorce Mediation process. Here are some myths about Divorce Mediation that we’d like to clear up…
Agreements Made In Mediation Aren’t Binding
Couples may mistakenly believe that since mediation doesn’t take place in court, decisions are not legally binding. This is a misconception. Whereas a judge would make binding decisions in a litigated divorce, you and your spouse make the decisions in mediation. Only after the two of you have signed the divorce settlement agreement you’ve collaboratively drafted does it become binding. After it is binding, it’s exactly like a court order. If one party fails to abide by the terms set forth in the agreement, legal action can be taken against them.
We like to note that spouses who can cooperatively and successfully dissolve their marriage through mediation are often less acrimonious with one another after their divorce. This is especially beneficial when there are children involved. Co-parenting agreements should always keep children’s best interests in mind. In many cases, two divorced parents may need to be flexible with their agreement on child custody (ie. for holidays). Two divorced parents who have spent years fighting over the terms of their divorce are less likely to be flexible, which isn’t very beneficial for their children. Two divorced parents who have cooperatively mediated their divorce are more likely to be flexible with their agreement.
Mediators Decide What Is Fair If Agreements Cannot Be Made
This is also a common misconception regarding the practice of Divorce Mediation. Many believe that if they and their spouse cannot agree on certain matters of their divorce that their mediator will decide what is fair. This is far from true. A Divorce Mediator’s role is to inform a couple on the process of divorce and facilitate cooperative communication between both parties in order to help them come to an agreement that fair in both their eyes. If Divorce Mediation is unsuccessful (a matter of your divorce cannot be agreed upon), your Divorce Mediator should end the sessions. It is neither their job to give advice or make decisions for you.
Divorce Mediation Is Only For Easy Divorce Cases
Some divorce cases involving domestic abuse, drug use, or a spouse hiding assets may require litigation. And there’s definitely a notion that Divorce Mediation is meant for simple cases in which both parties don’t have much to distribute between one another. But even high-asset couples can benefit from Divorce Mediation. Sometimes the informality and flexibility of Divorce Mediation are beneficial for complex cases. Rather than having a judge make decisions for you and your partner that may end up benefitting one partner over the other, you can still choose to mediate your divorce. We always recommend third-party counsel (from accountants, appraisers, divorce lawyers, etc.). So, you may think that your divorce is too complicated for you to understand, that litigation is the only way you’ll be able to manage the complexities surrounding your divorce. But independent, expert counsel is always available for you, even in Divorce Mediation. You’ll never be winging it with your personal or family’s assets.
Divorce Mediation Is Only For Uncontested Divorce
This is another common misconception regarding Divorce Mediation. It is extremely rare that a divorce is entirely uncontested. Divorce Mediation isn’t only designed for uncontested divorces. If a divorce is fully uncontested, a Divorce Mediator can be beneficial with their knowledge of the divorce process and ability to clearly describe it. But the main advantage of having an experienced Divorce Mediator is their ability to facilitate cooperative communication regarding a couple’s divorce settlement agreement. There may be heat over an issue, such as child custody. A Divorce Mediator can cool down the conversation and place perspective on the issue. They can also come up with creative solutions that a divorcing couple may not have considered – one that’s is mutually acceptable and easier to agree on.