Divorce mediation is based on the premise that in most instances, especially when the parties have children, they will be required to have an ongoing relationship following the divorce. Thus, it is not only necessary to resolve the present outstanding issues between the couple but, to resolve it in such a way that they will be able to relate to to one another, to be able to deal with one another in a civil manner in the future. Separating and divorcing couples have important interests in common, as well as conflicting interests. What keeps a couple from concluding an agreement between themselves is not their conflicting interests, as the adversarial process would suggest, but rather their feelings of disappointment, hurt, anger, and fear. The process of mediation expressly addresses and calms these destructive feelings rather than exacerbating them, as the adversarial process does.
Distinguishing "Needs" from "Wants":
In divorce mediation, the lawyer's role is transformed from that of an exclusive advocate and surrogate of one antagonist, to that of a neutral adviser and facilitator to help and guide both parties through the process of negotiating by themselves a settlement that they, not their attorneys, will shape and refine. The professional mediator assists the parties in defining the relevant issues, understanding the choices, determining the difference between their "wants" and their "needs" and negotiating "positions". The mediator will help the parties explore the variety of possibilities that are available to resolve particular problems and direct the parties to those professionals, such as neutral accountants, actuaries, and insurance brokers who can provide real, concrete answers to their questions.
Nobody Wins- Everybody Gains:
In short, mediation is a process of informed decision-making and problem resolution that leads to genuine, consensual agreement rather than begrudged concession. By providing the parties with an active role in negotiating the outcome of their settlement, mediation allows both parties to stay in control of their emotions and the process of divorce while determining the distribution of their marital assets and the care, support, and supervision of their children.
Learning to Communicate on a New Level:
Communication between the parties in the mediation is not just encouraged but required. The parties are provided with extensive practice and problem-solving that can serve as a model and can establish a working relationship between the post-divorce parties. The goal of our program is to achieve settlement, and a sense of security and comfort with the new relationship. The emphasis is on reconciling the interests and needs of each of the parties rather than on vindicating their legal rights.
How Long and How Much:
By using one or two, neutral mediators the process is streamlined and the cynicism that results from the creation of two diametrically opposed and distorted versions of facts, usually presented by opposing counsel, is eliminated. The entire divorce process takes approximately 2-3 months, as opposed to 2-3 years in the adversarial process, and can cost as low as 10 percent of the cost of a conventional divorce, thus helping the parties preserve their lives' savings as well as their emotional stability and personal dignity.
Couples seeking a divorce through mediation also have the same fears and sense of rage of separating as well as the greed and vengeful emotions coming from having to share with an adversary. They also experience being betrayed and cheated. Mediation, however, redirects these destructive feelings and behaviors by allowing the parties to enter into a resolution together. Their joint presence prevents many negative assumptions, fears, and projections. The empathetic posture of the neutral, professional mediator toward each of the parties encourages similar treatment of each other.
In short mediation can help because it calms where litigation excites; it emphasizes convergence of interests where litigation emphasizes divergence of rights. Mediation teaches adult problem solving and decision-making behavior by allowing the couple a controlled amount of emotional ventilation about and toward each other; by leaving the negotiating to the parties themselves; by encouraging open disclosure to each other; by constantly reminding them that they are not getting divorced from their children, and by helping them focus on their mutual interest in providing for the needs of the children; and by seeking a "win/win" solution. The mediation process encourages the parties to keep remembering that they once deeply cared for each other, that they both still care deeply for many of the same people, and that each in his/her own way must grieve his/her current losses and get on with his/her new life and new roles.