Though mediation is a less contentious way to divorce, there are still some myths that keep people from taking advantage of the process. Here are 5 of the most common ones:
1. Only people who agree on terms of settlement can mediate.
If that were true, there would be no need to mediate, and they could just enter into a settlement agreement. Of course, people who disagree can mediate, just like people who are angry can mediate and people who don’t really like each other can mediate.
The only agreement that both parties must make before starting mediation is to mediate. The mediator’s job is to facilitate the couple’s discussion so that each spouse is heard and understood, and the discussion is focused on resolutions that will satisfy each party’s interests.
2. A couple can only mediate if they have equal power.
In a marriage, it is rare that both spouses have equal advocacy skills. In mediation, though, a party who needs help to advocate or make good decisions can get that help, be it from a lawyer, financial person or divorce coach.
If someone is lacking the capacity to advocate as a result of substance abuse or domestic violence, then only mediators with special training should undertake those matters, if at all.
3. People who mediate don’t use lawyers, so their agreements are unfair.
First of all, the use of an attorney does not guarantee that an agreement is fair to both parties, nor for that matter, is a court determination always fair. To the contrary, in mediation, the parties are in control of all decisions that go into the final agreement. They make those decisions based upon a number of considerations, including their own ideas of fairness, the law, what works best for them and their family and how their decisions are likely to affect them in the future. Further, parties in mediation are encouraged to seek the advice of an attorney and many do, in fact, see an attorney at the conclusion of the mediation, to review their settlement agreement.
4. Mediation ignores the law so agreements will not be upheld.
Mediators provide legal information (not legal advice) to the parties, so the parties are aware of the law. It is then up to the parties to decide whether or not they want to apply the law or waive it. A knowing waiver of the law, such as a waiver of the Child Support Standards Act, will be upheld provided that the parties clearly understand what the law provides.
5. Only people with few assets and low income can mediate.
This is simply not true. Many high-income, high-asset cases mediate for the very reasons that anyone wants to mediate – it is a process in which you work with your spouse and not against your spouse to resolve your issues in a way that is least harmful to the family; it is private; it is less costly; and it typically takes much less time than an adversarial process..
Confused about whether you should mediate or not? Please give us a call or leave a comment in the box below. We would be happy to answer your questions.
Comments from Social Media
"Excellent article, but I would emphasize that they should be "mediation-friendly attorneys."
Mark B. Baer
Clare thank you for writing this! It is concise and well written. I will hope to post this information very soon
Bravo, Claire! I would add some of the "Pros" for choosing mediation: 1. It is a confidential settlement arrived out of court, not by a "stranger in the black robe" 2. A mediated MSA has mutually agreed upon decisions by both parties, following informed consent re their options. 3. Mediated agreements are more likely to be followed and stand the test of time, as opposed to litigated agreements that often require repeated visits to the courtroom for modification. 4. For families with children, the mediation process teaches co-parents how to successfully co-parent into the future, rather than continuing ti pull on opposite ends of the rope. Parties are taught "new scripts" to enhance their communication process, thus ensuring their children will not become collateral damage of the divorce battlefield.