Originally published on the Enos Law Firm website:
The decision to get divorced is often not an easy one. But what happens when you don’t want a full-blown series of court cases surrounding this experience? Rather than seeking divorce advice from your friends and a DIY solution, you can turn to mediation.
Mediation is a form of a divorce settlement that can work for you if you and your spouse are on terms good enough for open, if uncomfortable, communication. If you and your spouse are going through a divorce that is not friendly or amicable, mediation may not be the right option for you. However, like with any other unfamiliar legal situation, you should do your own research before deciding whether or not mediation is something you are interested in.
Mediation can seem confusing at first, but we’re here to help you learn what it takes an educated decision about mediation and how to come prepared for your first session. Here’s what you need to know.
What is Divorce Mediation?
Divorce mediation is a form of settlement that is used by couples that are going through a divorce and want to decide how to divide their shared property, assets, and custody of their children. The goal of mediation is to reach a compromise between the two people getting divorced and to reach a decision that both parties can agree to.
Since meditation does not take place in court, it is possible to save a lot of the time, money, and frustration that comes with a court case. Mediation is a much more amicable form of divorce settlement than litigation.
What is the Difference Between Litigation and Mediation?
In litigation, a judge has the final say over every decision that is made. However, when it comes to mediation, there is not a judge directly involved. Therefore, in mediation, the final decisions are made between the two parties without a third party giving any sort of final say in the process. The mediator’s role is to guide the process and ensure that everything is legal, not to make decisions. Though mediation can be court-ordered, the meditation itself will not involve the judge.
If you and your spouse are unable to work together to come to decisions regarding the terms of the divorce, then you will need to go through the divorce litigation process in family court.
What is the Role of the Mediator?
The role of the mediator is to act as a neutral person between the two parties opposing each other during a divorce. The mediator does not always have to be a layer, but they should be very well-versed in divorce and family law. Using a divorce lawyer as a mediator can ensure that everything that happens in mediation sessions has legal precedent and would hold up in court if something were to happen down the line. In addition, the mediator should not be picking sides during the mediation process. They are there to ensure that each party is acting in a fair and reasonable manner.
Since mediators are a neutral party, both you and your spouse can ask them any questions that come up during the process. However, if the mediation is court-ordered, there is a chance that you will not be able to ask questions outside of the sessions. In that case, your lawyer should be able to answers any questions you have regarding the specifics of the mediation process.
You Need to Agree to Mediate
Mediation is one of the more amicable ways to go about a divorce. That doesn’t mean it’s going to be comfortable. Before you come to a mediation session, you must agree with your spouse that this is the path you want to take. It’s impossible to lay every issue out on the table if you can’t first agree to sit at that table together. In short, both you and your spouse must want to be involved in this process.
Be Prepared for the Mediation
Make sure that you come to every mediation session with all of the materials you will need for the session. If you are missing any important records, facts, or schedules, you will draw out the mediation unnecessarily. For example, if you know that your session is going to center around custody of your children, make sure that you bring a written out schedule of your children’s activities and have an idea of what you would like in terms of custody. Coming into the session with a plan of what you want to do will make the session easier to navigate. Make sure you also prepare beforehand for what you are willing to compromise on and what will be non-negotiable for you.
Being emotionally prepared for your meeting as well is important. You know that you are going to be discussing difficult topics, and if you do not acknowledge the tough feelings that you are facing, they have the potential to come out in unfriendly ways during the mediation. Make sure that you spend time processing your emotions surrounding the divorce in a healthy way so that you can have an open and honest line of communication during your mediation sessions.
One way to think of it is as though mediation is a business meeting. You wouldn’t show up to an important meeting empty-handed when you are supposed to be an active participant, and you wouldn’t be overly emotional about all the decisions made in the meeting. Try to separate your personal feelings from the situation in any way you can and focus on looking at the mediation as objectively as possible.
Prepared to Put Your Children First
After you agree to go through mediation with your divorce lawyer, it’s important that you put your children first. If you have kids, their interests come first in all decisions that you, as parents, make in mediation. From child custody to the living situation, your kids come before yourself. Fortunately, most couples who choose mediation come with this idea already in mind.
As mentioned in the preparation section above, making sure that you know your children’s schedules and normal day to day lives will help in making sure that during the divorce there is as little disruption as possible. Part of putting your children first is making sure that no matter how big of a change you are going through, you try to minimize the impact that it has on them.
Stay on Good Terms With Your Spouse
This can be one of the most challenging parts of the divorce process, especially if you’re still living in the same space. Whether you’re going through an uncontested divorce or not, staying on decent terms with your spouse can ultimately make the mediation process smoother and more efficient.
Set Goals for Your Mediation.
While it’s important to come into mediation with a flexible mindset, it’s important to have at least a few goals in mind. Something like keeping your children in their current home could be a goal to aim for. When you and your spouse come into mediation with similar goals, it can help speed the process up.
This is especially important if you have a limited number of sessions, or if each of your sessions has a set time limit. If that is the case, make sure that each session has a specific goal that you want to achieve. Some examples could be to decide on a custody agreement in one session or decide where material assets will go.
No matter what path you take when it comes to your divorce proceedings, considering mediation as a part of that procedure can be helpful. Whether or not you can amicably discuss the terms of your divorce, being prepared to do so can be very helpful in getting your desired outcome from the divorce proceedings.
Divorce advice can range from recommending indifference to a full-on court battle. Fortunately, mediation offers a path that can be amicable and often leaves both parties satisfied. Considering it can take over a year for couples to agree on the terms of the divorce in a traditional case, mediation may be a better path for you.
Thanks to our friends and contributors at The Enos Law Firm for their insight into dividing a 401(k) retirement plan in a Texas divorce.
If you are looking for a family law attorney or defense attorney, or simply have any legal questions, call or email me, Amir Tavakkoli, Houston attorney from the A.T. Law Office. My office phone number is 832-800-5590 and the email is firstname.lastname@example.org. While we primarily practice in Harris and Montgomery County, we also travel to other counties such as Liberty County, Chambers County, Galveston County, Ford-Bend County, Waller County, Brazoria County, etc. Contact the A.T. Law Office by calling (832) 800-5590 for a free consultation.