As a professional who devotes her career to divorce mediation in San Diego County, I have to admit, I am biased. I believe that anyone can mediate their divorce; they just need to agree to try, and they need the right mediator. Like most people, I have found myself in countless social situations where I hear stories from people who went through a costly and drawn out divorce, only to regret all the acrimony and money they spent. I'm always surprised, however, to hear these same people say “We could never have mediated our divorce!” as though they feel a small bit of consolation about what their divorce costs. When I dig deeper I usually discover that they have misconceptions about who can and cannot mediate. Sadly, these misconceptions can interfere with their ability to consider all options available to them in the divorce process. If you’ve been thinking you can’t mediate because of one of these myths, I urge you to take a moment and reconsider if mediation might be right for you. Choosing to mediate will not only prevent the stress of a litigated divorce, but you’ll also be saving time and a whole lot of money.
Myth 1: You Have to be Friends to Mediate
If you had to be friends to mediate, very few couples would ever mediate successfully. Yes, you need to follow some rules of decorum, but you have to do that in the courtroom too. Your mediator will set the ground rules, ensure your sessions are not so long as to emotionally exhaust you, manage communication so as to minimize conflict, and moderate the negotiations so each of you is heard. Think of cordial, organized, and moderated.
Myth 2: Only People with Few Assets can Mediate
You don’t have to have next to nothing when it comes to assets to be a candidate for divorce mediation. A seasoned mediator is also a resource hub who can and will connect you to the experts you need to value assets, ensure you are informed about the tax ramifications of property you have to allocate, and connect you with appraisers and other experts you may need. It is critical that your mediator know enough to flag issues. That’s where training and experience are invaluable. Depending on your situation, a mediator may recommend that you bring a CPA or Divorce Financial Analyst into the mediation to help decipher financial statements, explain tax consequences, and crunch numbers as you run “what if” scenarios. One advantage to mediation over a litigated divorce is that you can think more creatively than a judge who is bound by legal precedent and procedure. The more complex your asset and debt pool, the more creative you may want to be so as to minimize the tax impact of divorce. Mediation offers total privacy which facilitates full financial disclosure and creative problem solving.
Myth 3: Couples with Children Can’t Mediate.
I often hear people say that they can’t mediate because of disagreements regarding custody or visitation. I, on the other hand, can’t think of a better reason to mediate. Mediation allows you to protect your children from the acrimonious no-win fight which might take place in court over how they
should be shared. Divorce mediation is private, and it allows for very robust and creative parent planning. A skilled mediator can help build a co-parenting or parallel-parenting plan and direct clients to parenting resources. In mediation you can negotiate new boundaries, agree on communication tools, and negotiate terms that a court does not have time or the power to rule over, such as support for college bound children. Couples who mediate their parenting plans tend to stick to them, whereas couples who feel stuck with a court order (which they often don’t agree with) tend to be non-compliant.
Myth 4: In Mediation You Won’t Have any Professional Guidance
Electing to mediate your divorce does not mean you cannot hire an outside attorney or divorce coach to support and guide you through your process. Although your mediator is an independent and neutral party who cannot advise or advocate for either of you (even if they are an attorney-mediator by profession), they should offer you plenty of information and access to resources. Some of my clients hire an attorney to act as their consultant through the whole process (Click here to read my piece on selecting a consulting attorney). Others simply use an attorney to review their marital Settlement Agreement before they sign it, or choose to consult an attorney if they run into unexpected legal issues and just need help understanding the law as it would apply to them on a specific issue. Many clients are looking for other types of support, perhaps the insights of a Divorce Financial Analyst, or parenting advice from a parenting coach or therapist. You may want the services of a divorce coach to help you with organization, forward focused planning and general management of your case. No matter what your individual needs are, your mediator should be able to refer you to independent, neutral experts to jointly advise you and/or the kind of expert who can help you come to the negotiations informed and fully prepared to negotiate.
Myth 5: I’m Not Strong Enough to Mediate.
What I have come to learn though initial consultations with my clients is that almost everyone comes into mediation fearful they will get a bad deal. They are so emotionally exhausted or weakened by the breakdown of their marriage they can’t imagine having the courage, strength, or wherewithal to stand up for themselves. This fear is what often catapults them into litigation. Ironically, the uncertainty of the litigation process, the enormous costs, the delays, and ultimately the feeling of having no control over their divorce are truly what leaves people feeling defeated during divorce. Mediation gives control back to the individual. A good mediator will help level the playing field, manage the tension and pressure, and set an environment that is safe where each person can be fully heard. Many experience an apology, an epiphany, a deeper understanding of the other’s fear, and gain empathy through the mediation process. I often say mediation is not therapy, but it’s usually therapeutic. There is very real value to finding your voice, vesting in fully understanding what you have and don’t have to divide, and fully engaging in a deal making process. People who negotiate their own Marital Settlement Agreements are far more likely to live up to them. You are stronger than you know.
Laura McGee, JD is a Divorce Mediator and founder of Leave Strong Divorce Services. She is a non-practicing attorney. Nothing shared by her in this article should be construed as legal advice. Laura is sharing insights which are based on her education and training, career path from trial lawyer to mediator and divorce coach, and personal life experience as a mother who spent far too much time and money litigating her divorce. If you are seeking legal advice please contact a licensed attorney.