Both Negotiation Approaches Are Similar, but Different
by Michael Heath
When I mention early-stage divorce mediation, or what is sometimes referred to as courtless mediation, people often respond with knowing of a couple who settled the end of their marriage that way. With a little inquiry, more times than not their friends or relatives were involved in court-mandated mediation. Just like early-stage mediation, mediation made compulsory by the court can serve up positive results. Knowing the difference between both approaches can only help couples considering a divorce.
Mediation is a way for couples to retain control over the decision-making process using a neutral third party. When this solutions-based technique is employed, the mediator attempts to discover each side’s interest in the issues. From there discussions are steered toward finding some common ground. The spirit of cooperation usually yields mutually acceptable outcomes, even if one (or both) side does not get everything they wanted. This contrasts with the inherent adversarial approach of litigation where each party attempts to outdo the other. That negotiation process can inflame emotions, delay any settlements and result in high legal bills. Mediation is usually much faster, more agreeable and less costly.
Most divorcing spouses hire a family attorney who begins building a case for their client. Although the discovery procedure of gathering information readies each side for court, ninety-five percent of all litigated divorces are negotiated before a hearing or trial. It does happen on occasion that the negotiations fall apart or just one or more issues are left unresolved, resulting in an incomplete settlement. Either situation would send the case to court. Judges often do not want to make life-altering determinations before the couple tries the mediation process. The couple and their lawyers may be required to attend mediation to work out the unfinished business. In many cases, the court-appointed mediator brings a fresh perspective, resulting in a positive conclusion.
Some state legislation requires couples to attend mediation sessions right from the beginning. The meetings don’t have to be successful, but the couple must make a good-faith attempt at the process. If mediation does not work out in whole or part, the case goes back to the attorneys who then litigate toward a settlement. If that effort is unsuccessful the case ends up in court.
People usually believe that hiring lawyers and initiating legal action are required to move the divorce process forward. This is not true. Couples can hire a divorce mediator and begin negotiating in three-way meetings without filing with the court or retaining legal counsel. Unlike compulsory mediation, early-stage mediation meetings are held without lawyers. That does not mean the spouses cannot retain lawyers for consultation purposes outside of the meetings and probably should. If a settlement is reached through the process, it is prudent that each side have a lawyer to review the documents before signing off on any paperwork.
Mediation for Reaching a Divorce Settlement
The courts have so recognized the advantages of a creative solutions-based divorce process that they often require it. Whether a couple decides to use early-stage mediation or go into the process via a judge’s order, the upsides of brokering an agreement within the framework of respectable problem-solving can be very attractive.
Learn more about divorce mediation by getting The Courtless Divorce book: www.thecourtlessdivorce.com/buy-the-courtless-divorce-book/