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Question #20:
I am considering a legal separation. I have two young children and do not want to return to work full-time. I would like the process to be fair to me since I have I will be raising these children and supporting the house. I also do not want to endure courtroom battles. My husband will be cooperative. Will using a mediator provide me with the financial support to go it alone? Would I benefit financially from using my own lawyer? How do I know that I am getting the best I can for myself using a mediator?
Mediation will provide you and your husband a forum in which you will be in control of the decisions that are being made that will effect your life and the life of your children. You and your spouse will decide the issues of child custody, child support, spousal support, and division of marital assets, among other issues to be decided.

It is my role as attorney-mediator, to control the process rather than the substance of the matters being discussed, and to offer suggestions and recommendations when the parties are finding it difficult to arrive at a fair and reasonable settlement of the particular issues under discussion. You will be advised as to the law and as to how the courts have dealt with similar issues in the past so that you can make an informed decision about what you should accept or reject.

In mediation we try to satisfy the needs of both parties, rather than insist on the wants of one party to the detriment of other party. The adversarial system exacerbates the conflicting interests of the parties and prolongs the emotional and financial strain on the parties, to the benefit of only the attorneys who are paid by the hour.

Mediation does not provide either party with anything other than the forum for the two individuals to arrive at mutually beneficial solutions to their concerns. You can arrive at a financially secure result through mediation which will provide you with the necessary financial support to get on with your life under the new circumstances.

How do you define "the best I can for myself"? If you see it purely in terms of dollars, you may be able to get a "hired gun" to shake down your husband for more you may get in mediation. But what about the long-term effect this will have upon your future relationship with your former husband who still remains the father of your children and with whom you will have to deal on numerous occasions in the future such as weddings, etc? What effect will this have on the children?

If you consider the actual financial and emotional costs of a prolonged battle in court, which will necessarily ensue as a result of the two lawyers going head to head trying to "maximize" each sides position, and in the course of this battle, depleting the marriage of a large portion of its assets through astronomical attorney's fees, I have serious doubts about the financial benefits afforded by the adversarial system.

Mediation is not for everybody; but it is far better emotionally and ultimately financially for both parties. The adversarial system should be the court of last resort; not first resort. Mediation is a voluntary process in which neither party is obligated to participate. If the result is unsatisfactory, you can always turn to the court.

Leonard M. Weiner, Esq./Divorce Solutions

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