If you and your spouse have decided that you need to separate, it would seem that the last thing you would want to do is to engage in a process that would be costly, inefficient and likely to increase the rancor between you. Yet, that is sadly what most couples unknowingly do if they believe that they have no option other than to litigate their divorce.
Mediation is a more sane option that is likely to resolve the couple’s conflicts with an emphasis on reaching an agreement that works for the entire family. In mediation, the couple meets with an objective mediator who raises all of the topics which need to be addressed and facilitates a discussion between the couple to reach a resolution. So, what is the difference between mediation and litigation if there is an impasse on a particular issue? For example, let’s say the mother wants to stay in the marital residence with the children, but the father wants the house to be sold.
In mediation using the interest based approach, the mediator will first ask questions to make sure that the parties speak in terms of their interests to explain why each is taking his and her position and to make sure that the other person hears and understands it. For example, the mother wants the children to have the stability of staying in their home, but the father wants the money from the sale of the house so he can have a nice home for the children when he has access with them. The mediator can help the parties see that they have a mutual interest in doing what is best for the children, and given that interest, the parties can brainstorm and suggest different possibilities for resolution. These could include selling the house at a future time, dividing the other assets so that the father can have a safe home for the children, the mother buying out all or a part of the father’s interest in the house, or even a nesting agreement where the children stay in the house and the mother and father share time in the house while having small apartments elsewhere. The mediator will then have the parties evaluate these options, and parties will determine what can work for both of them but more importantly for their children.
How would it work in litigation? Since very few litigated cases actually make it through a trial, chances are that your matter would be resolved through attorney negotiations. The mother’s attorney will cite case law and arguments that support her point of view, and the father’s attorney will cite case law and arguments that support his point of view. Typically, there will be lengthy phone calls or extensive letter writing. Maybe there will even be a four way meeting where the attorneys will speak for their clients in terms of rights, obligations and different opinions as to what is likely to happen in Court. Ultimately, one party gives up and the other will win.
Unlike in mediation, the resolution in an adversarial process tends to be that one party benefits at the expense of the other. Aside from the financial and emotional costs of such a process, the result seems unlikely to be better than a result fashioned by the
parties themselves. It will breed resentment from the “losing party,” and even the “winner” may not be happy because of the time it took and the money spent.
Mediation is a much saner approach and tends to result in a mutual agreement which is more likely to be followed by the parties because it is one they themselves designed.