If you are getting divorced or have another family law issue such as contempt or modification of custody, parenting time, child support, or alimony, you may think mediation can’t work for you and that your only option is going to court, or your case is already in court. The following facts may change your mind and convince you that mediation is the best way to resolve your family law dispute.
MYTH: We are unable to mediate because we cannot agree on anything and our relationship is conflict-filled. We can’t talk to each other or even sit at the same table.
FACT: Mediation can help you resolve all your divorce or other family law issues, even when you don’t agree on anything or don’t get along well. With the help of a neutral, third-party expert in a private process, mediation helps you and your spouse or partner work through conflicts using interest-based negotiation. Your mediator can help you identify options and solutions to get you to settlement, with you in control of all decisions. Mediation is primarily conducted virtually now, over Zoom. You do not need to be in the same space to mediate. If you are uncomfortable even meeting together through Zoom, Mediation can occur separately, through “shuttle diplomacy.”
MYTH: We don’t need mediation because we agree on everything.
FACT: People often think they do not need assistance with their divorce or other family law matter, only to have their agreement rejected by a judge because it is incomplete, unlawful, or contains terms that a judge doesn’t consider clear, fair, or equitable. A family law mediator will share the relevant law and standards for you to consider in deciding terms. Your mediator will help you negotiate all aspects of your divorce or other family law issue so that your agreement is complete. Your mediator will also alert you if any part of your agreement falls outside the range of what a judge may find acceptable. A mediator can help you identify other options or, if a term is necessary to meet your unique situation, help you craft an explanation to a judge.
MYTH: We can’t mediate because I need to go to court right away and get a court order, or because my case is already in court.
FACT: Even if you need to file in court immediately to preserve legal rights or address an urgent issue, you can still mediate. Mediating your divorce or other family law issue takes significantly less time than litigation. In court, it often takes months before you can get before a judge and can take years until divorce trial. But with mediation, you can complete your divorce well within a year. Some issues, such as contempt or modification, may take only one or two mediation sessions to resolve. If your case is already in court, you can mediate at any point in the litigation process. Court personnel are always supportive of parties’ efforts to settle.
MYTH: We can’t mediate because it is too expensive.
FACT: Mediation is substantially less expensive than litigation. For you and your spouse or partner combined, the cost is often less than just one attorney’s initial retainer for court representation. Nussbaum Family Law LLC offers reduced fees for moderate and low-income clients.
MYTH: We can’t mediate because I need a lawyer to advocate for my interests.
FACT: You can and should have your own lawyer review your mediated agreement before you sign. Your lawyer can also help you prepare and strategize for mediation, review your finances, explain the law in-depth, and advise you on your best interests. When necessary, your lawyer may even accompany you to mediation. In addition to mediation, Nussbaum Family Law LLC offers mediation support services.
MYTH: We can’t mediate because my spouse or partner doesn’t understand what parenting schedule is in our children’s best interests.
FACT: Your mediator will help you listen to each other’s point of view by restating your concerns, asking each of you to respond, and asking you questions to help you explain. If you are still unable to agree on issues such as parenting time, your mediator can refer you to a parenting coach who can help you work through parenting issues.
MYTH: We can’t mediate our divorce because we have a complicated situation with our house, investments, stock options, retirement funds, taxes, trusts, alimony and/or child support issues.
FACT: Your mediator will be able to assist you with information regarding financial issues and can refer you to experts such as a pension evaluator, Certified Divorce Financial Analyst (CDFA), certified property appraiser, Qualified Domestic Relations Order (QDRO) expert, or accountant.
MYTH: We can’t mediate because there is a power imbalance in our relationship. My spouse or partner has all our financial information, I don’t know my spouse or partner’s earnings or net worth, and/or I don’t understand our finances.
FACT: A mediator can help you set expectations about document exchange so that each of you may make fully informed decisions before entering an agreement. At a minimum, you will exchange or jointly create lists of assets, liabilities, income, and expenses, or the Probate and Family Court Rule 401 financial statements, which must be signed under the pains and penalties of perjury and must be filed with the court. You never have to make a major decision during a single mediation session, and you may discuss any issues and concerns with your own attorney and/or accountant or financial advisor before making any such decisions.
MYTH: We can’t mediate because there has been domestic violence in our relationship and I have or had a restraining order against my spouse or partner, or my spouse or partner was unfaithful, has a personality disorder, substance use disorder, or gambling addiction.
FACT: Your mediator will moderate discussions and can set ground rules to prevent disrespectful behavior such as abusive language, bullying, or harassment. You may meet separately with your mediator when necessary. You can also ask the court to modify a restraining order to permit mediation. Your mediator can help you address issues constructively and assist you in focusing on pragmatic decision-making and resolution rather than arguing about the past. If your relationship is so volatile that it interferes with your ability to have a discussion, your mediator can also refer you to a divorce coach or parenting coach. A coach can help you work around interpersonal conflict so that you can engage in mediation with the ability to make joint decisions.
In sum, mediation is an efficient, private, and cost-effective means of obtaining a divorce or settling other family law issues, even when you and your spouse or partner have too much conflict or think you agree on everything. It may be the best process for you.