5 Mediation Misconceptions

By Barbara Badolato, LCSW

In my 30-plus years of mediating divorces, I have heard just about every incorrect assumption regarding mediation. A few, however, are so prevalent, that I feel it’s time to set the record straight.

Following are five misconceptions I have heard frequently over the years, along with a description of how divorce mediation really works.

1. Collaboration, arbitration and mediation are different words for the same process.

With collaborative divorce, both spouses hire attorneys to represent them and agree to stay out of court. The attorneys negotiate the divorce through a series of four-way meetings (each spouse and his/her respective attorney). Often, other professionals, such as accountants or appraisers, provide assistance.

Although the terms “mediator” and “arbitrator” are sometimes erroneously used interchangeably, they are not the same. An arbitrator listens to both sides and then makes a binding decision.

A mediator has no power over the decisions. Working with a mediator gives you more, not less, control over your agreement and the corresponding issues such as parenting, division of assets, what to do with the house, etc. At any time, one spouse can disagree with any aspect of a decision being developed and, with the help of the mediator, continue to search for alternatives. The benefits are significant cost and time savings, as well as preserved relationships between parents and children.

2. It’s impossible to negotiate with my unreasonable spouse.

It’s natural to feel angry and resentful, especially if you feel you have been mistreated and/or lied to. Despite this, mediators are trained to develop an atmosphere of open communication so that both of your concerns are heard and addressed, and the resulting decisions reflect those concerns.

It may not appear to be so, but both of you want the same thing – a peaceful, effective end to the marriage, with an agreement in place that both of you can live with for the long term. And successfully working out the terms of your divorce, together, sets the stage for a non-adversarial relationship after the end of your marriage, which helps you both move on and makes you better able to co-parent your children.

3. I will end up with a better/more lucrative agreement if I hire my own attorney and engage in a traditional, contested divorce.

Litigated divorces accomplish one thing every time: The process enriches attorneys at the expense of the separating spouses. And although people entering into a litigated divorce often do so hoping to “win” against their former spouse, no one really wins.

Contested divorces fail to encourage the spirit of openness necessary to reveal personal information – assets, income and debt – as well as personal wants – such as whether they would like to remain in the home, how the children should split their time between the two parents, etc.

The desire to win at all costs leaves the ex-spouses in no position to continue to co-parent their children, as they often can barely speak to one another.

It would be far better to take the money you would have spent on two separate, expensive litigators and fund your children’s college education instead.

4. If I choose to mediate, I don’t need to use an attorney.

Whether amicable or adversarial, divorce is still a legal process. Although a trained mediator can help you come to agreement on seemingly insurmountable differences of opinion, you need an attorney to draft a legally binding separation agreement and subsequent divorce agreement.

Only family law attorneys know the law. Using one makes sure the agreement you arrive at complies with the law. And attorneys understand the process of filing all the legal papers necessary for the divorce to become final. This can include court orders such as a Qualified Domestic Relations Order, which allows one of the former spouses to share in the other’s retirement benefits.

5. Once my divorce is finalized, I won’t have to deal with my ex-spouse again.

Once you’ve made the decision to end your marriage, it can be calming to contemplate a time when you will never have to talk to your husband or wife again. Realistically speaking, however, there will be times when you will need to renegotiate the terms of your divorce.

If one of you loses a job, for example, that could impact your ability to make the agreed-upon child and spousal support payments. If you have children, you will want to discuss college plans with your former spouse.

Mediation lays the groundwork for being able to communicate effectively and even disagree productively. So when these thorny issues arise, as they must, you will have the tools to come to agreement and move forward.

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