Going through a divorce need not require spouses to “battle” it out in a courtroom. Indeed, far more divorces are resolved out of the courtroom through negotiation, often with the help of a trained mediator. Known as Alternative Dispute Resolution (ADR), mediation has become the rule, rather than the exception, in the divorce process.
As the name suggests, ADR was designed to be an alternative to court room litigation. Born out of a need to manage an increasing backlog of cases in our courts, ADR was designed to provide a process whereby litigants were encouraged to negotiate, with the assistance of a trained mediator, within a confidential system. Emerging on the scene in the mid-1990’s, the popularity of ADR, specifically mediation, has grown exponentially over the years, to the point that participation is now often made mandatory by Courts.
What is mediation?
Mediation is a process whereby a neutral third-party, known as a Mediator, helps guide negotiations between a divorcing couple and their attorneys. Addressing both the property and child related issues presented by divorce, the goal is to reach a settlement agreement as to all issues, which agreement is then reduced to writing, signed by the parties and submitted to the court for approval.
The Mediator is generally an attorney who has been trained and certified in the mediation process. A Court may, however, appoint non-certified attorneys to act as a Mediator. While generally attorney’s familiar with the practice of family law are selected to mediate divorce cases, there are instances where litigants agree to use trained mental health professionals.
The mediation process is confidential, which means that what is said and done during mediation is inadmissible in court. It also means that the Mediator cannot be called into court by either party as a witness.
Why should I consider mediation?
It is difficult to imagine a case where mediation would not be considered a useful tool in working through the divorce process. Mediation not only provides a path toward resolution but a resolution that the parties help to craft themselves, without the emotions, conflicts, costs and delays commonly associated with going to trial.
In the unlikely event that settlement isn’t achieved through mediation, the fact that participation requires the attorneys to have identified all marital assets, debts and valuations as well as formulate settlement positions, will be extremely useful if the matter goes to trial. Much of the preparation needed for trial will have been done and your spouse’s opposing positions will have been revealed. Accordingly, even if a settlement agreement is not reached, the process can still be valuable.