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5 TOP REASONS NOT TO MEDIATE DIVORCE

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What to Consider Before Opting to Mediate Divorce

While divorce mediation has significant benefits, it is not appropriate for every situation. There are numerous factors that must be considered before deciding to mediate divorce or opt for traditional litigation. It is important that you and your spouse both understand what mediation is and that neither party is being pressured into it.

mediate divorce

Waste of Time and Money

While mediation can be economical and time saving in many instances, it is not always so. If both parties are willing to cooperate with the process the outcome will likely be positive; however, if one or both spouses do not intend to be honest and open to compromise, it is likely to fail. Failed mediation means that litigated divorce is the next step. Both spouses must find their own attorneys (the mediation attorney cannot represent either party) and pay attorney and court fees associated with a new divorce proceeding. Information revealed during mediation may not be used in court, which means the discovery process must generally begin from the beginning. In addition, both parties are left with the bill from mediation and a loss of time.

Emotion

The dynamics of one failing marriage are never identical to another. Couples who plan to mediate divorce must consider their current and past personal relationship, and each spouse must consider their own emotions. While one couple may be amicable, agree to one another’s wishes completely, and have a minimal amount of negative, resentful, or sentimental emotion surrounding the divorce, another couple may find themselves too emotionally involved and angry to sit together through hours of mediation. Gauging where your relationship falls between these two ends of the spectrum will help you and your partner decide if mediation is right for you.

Power Imbalance

If one spouse is more articulate, has all the financial resources, or abusive to the other it can surely be detrimental to the divorce mediation process. For instance, in a marriage with a history of domestic violence mediation is likely not an appropriate choice as the victim may feel pressured or intimidated during sessions. Spouses who are victims, have fewer resources, or are inarticulate will usually have a more difficult time asserting themselves during mediation.

Court Procedure

The formality of the court in litigated divorce can be beneficial when it comes to power imbalances, truth, fairness, and evidence. Attorneys are able to use the court to have witnesses testify or produce evidence, while mediators cannot force the truth to be given by all parties. Court procedures also help ensure that both parties are treated fairly, whereas mediation is less able to help protect a party from an aggressive or intimidating spouse. This can play a crucial role in making sure the less aggressive spouse does not unfairly settle and lose what is rightfully theirs.

No Legal Advice

Even if a mediator is an attorney, they are not allowed to provide either side with legal advice. They are to act as a neutral party and are unable to speak to the parties about the divorce outside of mediation sessions.

Choosing to mediate divorce is a great alternative to litigation but it is not recommended in all cases.  Deciding whether to mediate or litigate may be decided early on, as early as the contemplation of divorce.  On the other hand, you may decide to mediate at any time during the litigation process. For instance, once a complaint is filed both parties could inform their attorneys that they wish to mediate.  Their attorneys could be present at the mediation sessions or they may mediate without attorneys. This option allows for the parties the benefit of being provided with legal advise during the mediation process through their individual attorneys.

Each case is significantly unique and an experienced mediator can help determine if mediation is appropriate.  At Armour Law Firm we recognize the importance of serving these diverse needs and provide mediation, collaborative divorce and  traditional litigated divorce services.

DIVORCE MEDIATION NJ

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DIVORCE MEDIATION ON THE RISE
THE MEDIATION PROCESS

Divorce mediation is an informal and flexible process.  Mediation may begin before or after a spouse has filed for divorce; the parties control when to start mediation. The mediator’s role is to guide the parties toward their own resolution after full disclosure.

Mediation often begins with joint sessions used to set the ground rules and an agenda.  The mediator helps both sides define the issues clearly.  During the process, the mediator may caucus with each spouse individually to help the parties move closer to a resolution.

Once all the issues have been addressed, the divorce mediator will draft a memorandum of understanding (MOU) covering all the issues and resolutions. The MOU is given to the attorneys representing each of the parties for their review, and one of the attorneys will then draft the settlement agreement.

If the complaint has been filed, the attorneys will request a divorce hearing.  On the date of the hearing, your divorce will be finalized.

nj divorce mediation

TOPICS COVERED BY DIVORCE MEDIATOR

Your mediator will help you work out a parenting plan, child support and in some cases spousal support.  The mediator will show you how the Child Support Guidelines apply to your situation.  The divorce mediator will help you better understand the cost of living apart based on your own current income.

This will greatly assist in determining both the amount and duration of financial support the children, and/or perhaps one of parties may need and/or be entitled. A mediator will also help you make a plan for all your future parenting decisions including; but not limited to extra-curricular activities, holiday schedule, birthdays, funding college education, emancipation, and tax deductions.

The mediator will help divide your marital assets such as the equity in the marital home, bank accounts, family business, retirement accounts including pensions and 401ks, cars, furniture, and jewlery.  The mediator will also assist in dividing up the marital debt. Some assets may require an expert evaluation.

For example, an expert should be obtained to determine the precise market value of a business or home.  Mediation is conducted so that both of  the parties can contribute equally to decisions, after full disclosure, and there should not be any winners or losers. There is no topic out of reach in mediation.  Mediation covers all the same issues attorneys negotiate in divorce litigation.

RISE OF DIVORCE MEDIATION

The rise in divorce mediation is attributable to two major factors.  First, mediation is much more cost effective than litigation.  Litigation is expensive, and the outcome in almost all cases is the same, which is settlement.   Fees are moderate and on an hourly basis.  No retainer is used in mediation as it is instead a ‘pay as you go’ system.

For example, Joe and Mary file for divorce and both have attorneys negotiating their agreement at $300.00 per hour.  After 15 hours of negotiations they have both paid each of their attorneys $4,500.00; the marital pot has been reduced by $9,000.00.

In the next scenerio, Joe and Mary file for divorce and both have attorneys, but rather than have their attorneys negotiate their agreement they instead use a mediator to reach a settlement. The mediator charges $300.00 per hour and after 15 hours of negotiating their agreement they each pay $2,250.00.

It is also highly likely that it takes less time to negotiate an agreement because both parties have made a conscious decision in a cost effective approach to reduce their overall fees and protect their naturally vested interest concerning their finances.

Additionally, significant amounts can be saved by using a mediator based on direct communications. The parties using the mediation process will actually be sitting before a mediator discussing issues and concerns.

In the alternative, the parties using their attorneys for such negotiations will have virtually all of their basic communications take place through their attorneys.  This process will likely entail each of the parties first having phone and/or other electronic communications with their respective counselors; and those concerns than being reduced to written letters that ultimately results in a costly deluge of such back and forth communications.

Nevertheless, it is recommended that both parties always retain their own divorce attorneys so that each divorce attorney can advise their client concerning the law and what is in their best interest.

A good divorce mediator will discuss the law but will not weigh in on the individuals best interest. Second, mediation gives the parties control over the outcome of their divorce.  A mutual agreement is reached in mediation by both agreeing to solutions.  Direct communication through mediation helps to limit hostility enabling and encouraging the parties to more openly discuss things productively.

Where children are involved, all mediation discussions are tempered by the fact that both parties are the parents of their children and you will have a continuing relationship as parents long after you have ended the husband and wife relationship.

Although most forms of separation negotiations are intended to take notice of the best interests of the children, these often get lost.  In mediation these remain the central and key issue. It is no wonder divorce mediation has been on the rise.  It offers a less expensive, less hostile, more open and ultimately productive means of divorce.