Traditional divorce can be extremely costly with attorney fees, and can be very slow in resolving issues. Litigation is an adversarial process in which two attorneys attempt to “win” sometimes at any cost for their client. That cost is not only financial, but the fight can also leave life-long emotional scars.
A traditional contested divorce takes 1 to 2 years for the court to decide. A contested divorce including a child custody battle may also cost tens of thousands of dollars.
An alternative method of resolving and deciding the same matters is divorce and child custody mediation. In this process, the parties use the services of a professional mediator, skilled in assisting couples in making the many decisions necessary to come to agreement in divorce. The mediator is knowledgeable of the items that must be included in a final Divorce Decree that will be acceptable to the court. The objective is to find a civil, reasonable, and fair outcome for all parties, at a low cost. Mediation often costs one tenth (10%) of the usual attorney fees in a contested adversarial divorce.
Many studies have demonstrated that divorce and child custody mediation is faster, less costly, and results in fewer bad feelings than disputed adversarial litigated divorce. One mediator can often accomplish the same outcome as two attorneys, in a fraction of the time, and at a fraction of the cost.
Some fear that in mediation they will give up some of their rights or be “talked into” a settlement they will regret. It is the responsibility of the trained mediator to see that this does not occur. A trained mediator has a responsibility to “balance power” between the parties, seeing to it that one person does not over-power or intimidate the other. A mediator must see to it that both parties are aware of their rights and options. A trained mediator insures that both parties in the dispute are heard. Mediators know that if a fair and reasonable agreement is not reached, the mediation will fail, and the parties will end up in court. A goal of most mediators is to find a “mutually agreeable and workable resolution that will last.”
Studies have shown that people who settle their issues through mediation often have less bitterness and animosity when it is over, feel that they have gotten some of what they wanted without giving up too much in the negotiations, and can live with their agreement. Couples who resolve issues through a civil process do less harm when children are involved. Parties in mediation go back to court less often than parties that fight in court and “lose,” only to go back to court to fight again and again.
Should mediation fail to resolve some or all of the issues, parties may choose to withdraw from mediation at any time (though in our experience, this rarely happens). No rights are lost and no disadvantage occurs as a result of trying mediation.
In our experience at Divorce Transition Services, the majority of mediations result in a mediated agreement. Our follow up indicates that very few, if any, of our cases break down and result in litigation.
Some ask, “is a mediated agreement enforceable by the court?” The answer is that at the conclusion of mediation, the parties will draft, with the help of an attorney (and at a very low cost), the papers necessary to file with the court as a binding agreement (Court Order) called a Decree of Divorce. In this case, a neutral attorney that works with mediators is employed by the hour to simply draft legal papers. They do not enter into negotiations and the attorney does not represent either party. This cost is usually in the hundreds of dollars rather than tens of thousands of dollars in an adversarial divorce.