Mediation's Place in the Divorce Process

Making the decision to dissolve your marriage is a difficult and painful one. Beyond the complex personal and emotional components, navigating a divorce can be intimidating and overwhelming. Be aware that there are different options regarding the approach that you take to the process, and each has its own advantages and disadvantages.

The first option involves one or both parties to the divorce action choosing to represent themselves, without attorneys, as self-represented parties. The biggest advantage here is that it is typically the least expensive route to take. Simply put, you avoid attorney's fees. There are myriad potential pitfalls with this method, however. Without the input of a legal professional, you may not know who to craft an agreement to best protect yourself and the interests of your children, if you have children. Is life insurance necessary to secure the financial orders? Is spousal support modifiable or non-modifiable? Are there provisions against unilateral relocation with the children? Were the child support calculations done correctly? Are you fully informed such that the division of property is fair and equitable?

Another option is when each party hires an attorney to represent them in the divorce process. This way each side has the input of independent counsel - someone in that parties' corner, advocating for his/ her position. There are now four people involved in your divorce case - your spouse and yourself, and legal counsel - four people to attempt to mediate an amicable resolution of all issues, or go to court to have a judge decide if an agreement can't be reached. In higher conflict cases, where there is no common ground regarding financial issues or parenting time, this option is probably a likely and understandable avenue, however it is also very expensive.

There is also the option of mediation, where the parties can collaboratively hire one attorney to mediate their case. This has the substantial advantage in that the goal is to minimize conflict and cost. In this scenario, the parties pool their resources and contribute to the fees - paying the mediating attorney one retainer (as opposed to each hiring his/ her own attorney and paying two comparable retainers to them). The mediator/ attorney does not represent either party, but works with both individuals in an effort to assist them in achieving an amicable resolution of all of their issues. In mediation, the attorney prepares the initial document for the divorce filing, assists the parties with filling out the necessary forms for the court, and meets with the parties to discuss the relevant statutes and case-law, and assists them with the negotiation of an amicable resolution of their case.

The goal in mediation is to craft a divorce agreement that includes a detailed parenting plan in cases involving children, and addresses a financial breakdown of the division of income and assets. Once a draft agreement is completed, each party is able to take that agreement to a separate attorney, at his/ her option, in order to review the agreement from that party's perspective.

Once the agreement is acceptable to both sides, it is brought to the court for approval. It is not enough that the parties have reached an agreement, the judge has to review it as being fair and equitable to the parties in the case (and in the best interests of the children, if any). As a mediator, I go to court with my mediation clients and show them where to go, pull the file, and am present for the hearing to assist with the finalization of the process.

For divorcing parents, mediation is often the most appealing. Couples mediate and collaboratively work together to create a plan that works for the parents and the children. This sends a message to the children that the divorce isn't about them - and that they won't lose either parent through the process.

Ultimately, the legal process of divorce is the same, regardless of which of the above options you choose. If mediation is that option, it is possible to have some semblance of control over the stress and costs of such a painful and significant process.

Paige Quilliam, Esq. is with Stevens, Harris,
Guernsey & Quilliam, P.C.
[email protected]