This article was written by the gentleman, Gary Shaffer, shown below. I don't know Mr. Shaffer, but I thought he wrote an excellent article that was posted on a mediator blog.
It is fairly well accepted that divorce mediation is a far better way to handle the details of unwinding a marriage than litigation. If there are any assets and any kids, the parties typically know the details of both, and with proper guidance are capable of figuring out how best to proceed so that the kids and assets are dealt with fairly and everyone can move on to leading happy and productive lives.
There are two caveats with divorce mediation.
- It won’t work where there is spousal abuse, and if there is any indication of such abuse, the mediation needs to stop. Spousal abuse indicates a severe power imbalance and the threat of physical harm. A mediation cannot take place when one spouse is in fear of the other.
- Hidden assets can become a stumbling block if that is an issue, though it is by far the exception rather than the rule. Even one spouse knowing more about the family finances than the other, which can often be the case, does not usually raise an issue of hidden assets. More typically it is a learning issue, something that can be addressed as part of the mediation process.
Divorce mediation deals with difficult and painful issues, but couples are remarkably capable of addressing their personal and family needs as the mediation progresses. Sometimes those needs first become apparent during the mediation. This can mean challenging and moments, but at least the discussions take place in a safe setting with a third person present who often facilitates discussions that would otherwise be difficult to have.
Whether a couple ends a divorce mediation with a signed agreement or not – and most do – they almost always know better what they need and how they want to proceed after their breakup. They know their finances better, know better how they can handle their children, and an ex with whom things have not worked out.
I always urge couples to have their own attorneys, at some point during the mediation process, especially to review any agreement before it is signed. A divorce is usually a life altering event and it’s important to have an independent attorney, whose interests are solely yours, review matters before finalizing. This is far, far less costly and more effective than litigating what in the end, a couple will have to decide anyway. Even if a mediation does not result in an agreement, and the process breaks down – again, very much the exception – the couple is typically far better off than if they had just gone to lawyers and had them start duking it out.