Divorce is simply a chance to end a marriage that both sides agree is not working, and both sides want to reach an equitable agreement so they can move on with their lives.
If you and your spouse find yourself in this situation, then divorce mediation may be a practical option. Mediation involves sitting down with a neutral third party to work out any outstanding issues related to the end of your marriage. If this sounds like something you wish to pursue, the experienced Brookfield divorce mediation attorneys at Karp & Iancu, S.C., are here to help.
How Can I Benefit from Divorce Mediation?
Mediation is a non-binding process. This means that you cannot be forced to agree to anything by the mediator or your spouse. At the end of the day, you are free to reject a negotiated settlement and pursue litigation. But keep in mind, in certain cases a judge may order you to attempt mediation before proceeding with a court case. (This is most common when the parties disagree over issues related to child custody and placement.)
It is also important to distinguish mediation from arbitration, which is another form of alternative dispute resolution. In arbitration, a third-party arbitrator essentially conducts a private trial and issues a decision that is legally binding on the parties. With mediation, in contrast, the third-party mediator is simply there to facilitate discussion between the parties. The mediator will not attempt to decide any disputed issues or favor one spouse over the other during the process.
The nature of mediation offers several advantages in the context of a divorce case:
- Confidentiality – Mediation is by design a private and confidential process. Nothing that you say during a mediation can be used by your spouse against you in court, even if the mediation is ultimately unsuccessful.
- Costs – Mediation is not free. But it is generally far less expensive than the cost of a full-blown divorce trial, especially if there are substantial assets involved.
- Scheduling – In litigation you are at the mercy of a judge’s often crowded docket. This means it can take months to have your case heard at trial. With mediation, however, you and your spouse can hold sessions on your own schedule and ideally reach an agreement much quicker than it would take to wait for the court to be ready.
- Control – Ultimately, mediation gives you and your spouse the ability to decide the most important issues in your divorce rather than a judge.
- Effectiveness – Many times, a mediated settlement gives the parties a greater personal stake in ensuring the agreement is successful, as opposed to litigation where one or both sides may continue fighting for years even after a judgment is final.
Mediation is also not an “all or nothing” proposition. You may be in a situation where some issues can be resolved through mediation but others may still require a judge’s intervention. Some of the more common issues addressed in divorce mediation include:
- distribution of property and marital debts;
- child custody and support;
- child placement and visitation rights; and
- spousal support.
One thing to note is that even a mediated settlement must still be approved by the court. And when it comes to issues like child custody, child support, and child placement, the judge is required by Wisconsin law to consider the best interests of the child in approving any settlement. The court may in certain cases appoint a guardian ad litem to represent the child in mediation to ensure that these interests are properly considered.
Why Does Mediation Fail–Or When Is It Not the Right Option?
Mediation is a great option for many couples. But it is not always the right option. A mediation may fail to produce an agreement for many reasons:
- one or both parties are not participating in good faith;
- one or both parties have unreasonable expectations or make unreasonable demands;
- there is a history of domestic violence that makes trust impossible;
- there is an imbalance of power in the marriage;
- one spouse opposes the divorce and wants to seek a reconciliation;
- there are still unresolved emotional issues related to the breakdown of the marriage; or
- the parties work with a mediator who shows impermissible bias to one spouse.
Again, it is important to emphasize that mediation only succeeds when the parties are in a position to reach an agreement they can both live with. The mediator is not there to decide what is fair or reasonable. The mediator’s primary function is to ensure the parties are effectively communicating with one another.
Do You Need an Attorney Even If You Choose to Pursue Mediation?
Mediators are often trained family law attorneys. This is particularly useful when it comes to helping parties reach and draft a final agreement for the court. But does this mean you cannot also work with your own attorney?
No. Even if you elect to try mediation, you can still retain your own attorney to advise you during the process. Some mediators may not allow outside attorneys to be present during mediation sessions. But you can still consult with a lawyer on your own time. This can be especially helpful if you are considering whether to accept a proposed settlement offer as the mediator cannot advise you one way or the other, but your own attorney can offer you such an assessment.