Divorce mediation has become an increasingly popular option for clients who are seeking to end their marriages but who do not want to become embroiled in a bitter, angry and expensive divorce. If you are considering mediation, you may be able to save yourself a lot of headache and a lot of money by making a commitment to give this alternative form of dispute resolution a try. However, if you are considering mediation, you also need to find the right attorney in order to have a chance of the mediation actually being a successful one.
Divorce mediation works very differently than a traditional litigated divorce. In a litigated divorce, each of the two spouses who are ending their marriage will come to court and will be represented by a lawyer (ideally- although some people occasionally try to represent themselves). The two spouses will each argue about why the judge should see things their way and give them the money and the custody agreements that they want. The judge will make the decision based on applicable legal standards and based on the strengths of each party’s case.
The litigation process is inherently adversarial and it pits spouse against spouse; attorney against attorney. Many lawyers have become very familiar with and very good at the litigation process, fiercely and staunchly advocating for the rights of their clients.
Mediation Requires a Collaborative Approach
Mediation, on the other hand, is not designed to be an adversarial proceeding but is instead intended to be a collaborative one. Mediation will not work for a divorcing couple unless both parties are willing to be nice, to be fair, to listen and to compromise with each other.
During the mediation process, a mediator works with the couple who is divorcing in order to help empower them in coming to a settlement agreement that works for them. Unlike a judge, a mediator doesn’t make a ruling on the case and generally cannot send out subpoenas or compel testimony. A mediator doesn’t even form an opinion on the divorce settlement at all. Instead, the mediator works to help the couple who is divorcing to communicate better with each other and to find common ground to create a divorce agreement.
The role of a mediator is to facilitate open, honest and productive negotiation, but a mediator does not give legal advice or guidance to any client who is involved in mediation. As a result, many people give in to things they shouldn’t or end up getting an unfair deal. Hiring a lawyer is the best way to ensure that your mediation goes smoothly so you can get the divorce settlement that you deserve and that makes sense for your family.
However, you want a lawyer who is not just a litigator. Sure, it is important that your attorney be comfortable with litigation and be able to advocate on your behalf in a court if things get that far. However, you also want a lawyer who is skilled in negotiations and mediation and who can represent you not as an adversary of your spouse but as someone who is working both to compromise and to protect his essential rights.
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