Mediation is an alternative dispute resolution process where the parties work with a third-party neutral, i.e., a mediator, to settle their disputes out of court. In divorce mediation at Kales & Kales, we, the husband-and-wife team of Jonathan and Amy Kales, co-mediate and work with our mediation clients to reach resolution of all issues which arise from the dissolution of their marriage. Once an agreement in principle is reached, we will draft a Marital Settlement Agreement, which is the document by which the parties qualify for an uncontested divorce.
If you are just beginning your research into the available divorce process options, this blog article will debunk seven common misconceptions about divorce mediation.
Misconception #1: Divorce mediation is only for couples who have an amicable relationship.
Although it is a true that mediation is a kinder and gentler way to divorce than a traditionally litigated divorce, it is not true that mediation only works for divorcing couples who have an amicable relationship.
On a scale of 1 to 10, we find mediation can work for divorcing couples who have a conflict level as high as 5 compared to other divorcing couples, or maybe even 6. Why is this? Because we have years of experience as family law mediators and attorneys and are, by nature, creative thinkers, we are often able to come up with solutions to issues which our clients have not considered. In addition, we know when it is important to let parties speak and be heard and when it is time to redirect the conversation.
There are some types of divorces where mediation is not a good choice, for example if one or both parties have untreated mental health issues or if there is abuse in the relationship. However, simply having a less than amicable relationship does not rule divorce mediation out.
Misconception #2: Divorce mediation is not as effective as traditional litigation.
Not only is divorce mediation as effective as a traditionally litigated or negotiated divorce, it has some distinct advantages over those process options.
First, generally speaking, those who choose mediation over a traditionally litigated or negotiated divorce spend less and experience less stress. Moreover, the goal of mediation is to craft an Agreement that is durable and works for both parties, while taking the concerns and goals of each party into account. By working together, divorcing couples who mediate often set themselves up to preserve a civil, if not friendly, relationship with their ex-spouse, and they often leave the mediation process with a framework which will allow them to co-parent successfully.
Misconception #3: Only certain issues can be resolved through mediation.
In a broad sense, divorcing couples must determine how to divide their assets, allocate their debt, how they will provide health insurance and pay for unreimbursed medical expenses for themselves and their children, what their parenting/custody plan will look like, whether there will be spousal support/alimony and if so, what will that look like, and finally, how to handle child support and expenses. In addition, some divorcing couples include clauses in their Agreements regarding the filing of income taxes, life insurance, and future college expenses for their children.
Couples can, and do, discuss all of these issues in their mediation sessions. The process and issues are unique as the individuals who are mediating. The key thing to know is that mediation can resolve all issues stemming from the end of a marriage, from the mundane to the complicated.
Misconception #4: Mediation is not legally binding.
Once signed, a Marital Settlement Agreement reached in mediation is a binding legal contract. Once the parties are divorced, the Marital Settlement Agreement is not only a contract, it becomes part of their Final Order of Divorce. Therefore, a party who breaches the Marital Settlement Agreement after the divorce would be violating a court order. This is no different than an Agreement reached via a traditional negotiation.
At Kales & Kales, we are not only experienced mediators, we are also experienced attorneys who have been practicing family law for many years. We make sure our clients cover every matter which must be covered in a Marital Settlement Agreement, and we make sure our clients enter into Marital Settlement Agreements which are enforceable.
Misconception #5: Only one mediator is involved in the process.
At Kales & Kales, our mediations are led by co-mediators. Both of us, Jonathan and Amy, are present in all mediation sessions.
The benefit of having two mediators is significant. First, we have complementary strengths. Jonathan is a creative, outside-the-box thinker; Amy tends to be more linear. Jonathan is a strong verbal communicator; Amy sees things in outline form and often takes the lead in taking notes. Secondly, having mediators of two genders allows both parties to feel understood. In fact, men and women often hear things differently. It is not unusual for Jonathan and Amy to stop the mediation to make sure they’re hearing things the same way and that what they’re hearing is consistent with what the parties are trying to communicate.
Misconception #6: Mediation is not confidential.
Mediation is a confidential process. Clients of Kales & Kales can be assured what happens in their mediation sessions will remain in the mediation process. Mediation talks and memoranda cannot be used against a party should they end up litigating their divorce. Prior to entering into the mediation process, the parties and mediators enter into an Agreement to Mediate, which further details the terms of the confidentiality; however, rest assured your information is held in the strictest confidence.
Misconception #7: Mediation is only for couples who are divorcing.
Mediation is not just for those who are divorcing. In fact, mediation can be used in a variety of ways including, for example: to help non-married couples determine a custody schedule, to help a divorced couple settle an issue which has arisen post-divorce, or to help a married couple reach agreement for a Postnuptial Agreement.
Mediation is a dynamic alternative dispute resolution process option which can be used in many situations involving family law. The lawyer mediators at Kales & Kales are experienced in identifying issues and assisting clients to reach a lasting and enforceable Agreement.