What is divorce mediation?

The concept of divorce mediation has increased in America in the last thirty years as divorcing parties realize that divorce court should be a last resort. Divorce mediation helps those people whose lives are actually affected by the decisions and allows divorcing individuals a sense of control of the outcome IF it is done right.

Here are 4 things to keep in mind when considering divorce mediation.

1. Balance of Power

Too much power on one side of the table creates an unsafe environment. The power could be due to the marital dynamic, control of financial resources, or access to information. A skilled divorce mediator will recognize the power imbalance together with the dynamic creating it and set out to level the playing field.

2. Safe Container

Lack of a safe container leaves couples feeling lost in the ambiguity of a complicated decision making process. A skilled divorce mediator will insure the couple is constantly apprised of where they are in the process. They will inform the client of the next steps in the process, homework assignments to be completed, and timelines for their completion. The mediator will also maintain an awareness for the parties of the legal process they are engaging in.

3. The Mediator

“Mediators” are unregulated. This means that there is no credential that guarantees a divorce mediator has the requisite knowledge and experience to assist a couple in navigating the largest financial transaction of their lives.

The increased interest in divorce mediation means that the number of divorce mediators has risen as well. Individuals with varying backgrounds have hung up shingles as divorce mediators.

Divorce mediation is a process that can be taught. What can not be taught is the human dynamic that occurs during the process. For this reason it is important to engage a divorce mediator with experience and training specific to divorce. This probably means a lawyer and/or Certified Divorce Financial Analyst.

4. Costs

Beware the flat fee divorce mediation. It is extremely rare for a couple to successfully navigate and complete a divorce for a flat fee. Often the professional will reach the extent of the time they have allocated for the flat fee and ask for more money or begin to disengage and abandon the parties before the diorce mediation process has been completed.

Divorce mediation is not always cheap. However, failed mediation proceedings may be a complete waste of money and time.

One last thought

Just because you resolve your differences outside of court does not mean you are engaging in divorce mediation. Mediation is a process where a neutral facilitator guides a couple through decision-making around legal, emotional, and financial issues that must be resolved in a divorce.

Couples need to understand that divorce mediation is not the only way to resolve their differences outside of court. Many will be better served by a process where they have legal counsel actively engaged which usually does not occur in mediation.

Divorce mediation participants need to advocate for themselves and demand clarity regarding process expectations and costs.

Wellspring Divorce Advisors helps individuals and couples address the financial aspects of divorce in a civilized, equitable, and efficient manner by providing expert divorce financial planning and advice.

Contact us to find out how we can help you through this process.

What is No-Fault Divorce?

No-fault divorce refers to a divorce in which the granting of a dissolution of marriage does not require a showing of wrong-doing of either party. It is therefore not necessary for one party to produce evidence that the other has committed a breach of the marital contract. In other words, you do not have to prove that your spouse cheated or misrepresented themselves in order to seek a divorce.

The Beginning

“No-fault” divorce in the United States originated in the state of California effective January 1, 1970, in a bill signed by then governor, Ronald Reagan. In August of 2010, New York governor, David Paterson, signed “no-fault” divorce into law. Since October 15th, 2010 no-fault divorce has been legal in all 50 U.S. states.

Prior to no-fault rules, a divorce could only be obtained through the showing of fault of one of the parties. Unfortunately it wasn’t just about proving the other party didn’t love you anymore; instead you had to prove one party had breached the marital contract through adultery, abandonment, felony or other culpable acts.

In circumstances where there was no party at fault and the couple simply wanted to dissolve their marriage, they might arrange for what New York practitioners called “collusive adultery.” A pre-arranged time would be set by mutual agreement for Wife to return home to find Husband with a mistress. This finding would offer the evidence of adultery necessary to obtain a divorce.

These types of arrangements were common along with blackmail through unsubstantiated accusations of fraud, cruelty and criminal behavior. I am told by attorneys in New York and Connecticut that blackmail and other legal fictions were common for divorces in New York state until the 2010 adoption of no-fault laws.

The Result

The opposing party would often not contest pleadings or do so only sparingly as a token for the courts. Ultimately judges and some lawyers began to recognize the affect these legal fictions could wind up having on the judicial system considering the dissolution proceedings were started with lying under oath.

The term no-fault may eventually fall out of the vernacular of the American people as no-fault laws have now been adopted by all states in the union.