Is mediation for you? (part two)

Avoiding "you vs. me"

The process of divorce is one of the most difficult times in a person's life, and finding the energy to work towards a mutually cooperative agreement is sometimes impossible. A legal solution, worked out between a judge and lawyers, may seem an easier course of action.

However, mediation does offer a way to avoid the ugly conflicts that can arise in divorce court. The court system often polarizes the parties, and the very process itself causes them to fight about the issues. Mediation lets both spouses decide what is best for themselves and the children, if any; the divorce agreement is worked out and mutually agreed upon by both spouses, who are working from the same side of the table rather than opposing sides of the courtroom. "Mediation gives clients the sense that they can work through their own problems," says Griffin. "It allows them to have a sense of control over their own outcome -- in terms of how to end their divorce and how to begin their future as co-parents."

However, some people may need the symbolic confrontation of the courtroom in order to complete their emotional divorce.

Mediation may not be for you

"I've seen mediation become very difficult when domestic violence is an issue," Griffin explains. "There's an unlevel playing field. Even when the spouses are in two separate rooms, the abused spouse often feels intimidated by the other and think he/she needs to settle so the abuser won't get mad. If one or more of the parties is heavily involved in alcohol or drug abuse, it's a question of clarity of mind. It's not impossible to mediate a case in this situation; it's just more difficult." And Bourne adds that cases in which one or both parties have severe mental illness should not be mediated.

In many cases, one spouse is dominant and the other passive. A good mediator will be aware of power imbalances and compensate for them, evening out the weight of power on each side and promoting discussion. "A mediator should deal with a power imbalance by helping the less powerful person to feel more of a sense of power," says Griffin, "either through the attorney or by helping him or her to feel that they're going to be listened to, their opinions will be heard, and hopefully their needs will be met in the mediation process. This can also be dealt with physically, with the parties in two separate rooms, so that the less powerful person is more comfortable to speak openly with the other not present."

Benefits of mediation

Mediation can have a number of unforeseen positive benefits, such as:

• It costs less than going through a lengthy divorce trial. Once a mediation agreement has been reached, the final contract must still be approved in court. However, because the agreement has already been approved by both parties, the length of time spent in the legal system is lessened, which generally reduces legal fees.
• The mediated agreement has been created by both of the parties to suit their family's needs, they may find it easier to accept and respect than one reached in a courtroom. "Parties maintain control over their own divorce, rather than letting a judge or jury make significant decisions for them," says Bourne.
• Mediation often teaches couples new communication techniques that can help them to avoid future difficulties. These new skills are particularly valuable when children are involved: successful co-parenting requires open lines of communication. As time goes by, changes may occur in your situation, and the agreement may need to be changed as well. Should there be a need to change the contract, there is already an established framework for communication.
• "Children do not get caught in the middle as badly," Bourne says. An amicable, negotiated resolution is less harmful on the children, especially if they have input into custody issues. And keeping things friendly between ex-spouses makes it easier for them to co-parent. "Future relationships can be maintained."
• "Clients get a sense of empowerment and well being," says Griffin. "They're able to work out their own problems and learn a way to resolve things without being adversarial. If they have legal problems later on, they know they don't necessarily have to litigate them. Parents come away feeling that they are co-parents, no longer adversaries. They can parent their children together with no adversarial litigation on their minds."

With mediation, the rewards -- monetary, emotional, and psychological -- can often outweigh the time, effort, and concessions necessary to make an agreement possible. If your hope is to find a peaceful future with your soon-to-be-ex spouse, the trick is finding a mediation solution that works for you. As Bourne puts it, "Going through divorce does not have to mean one party 'wins' and the other 'loses'. Both parties can win."

Is mediation for you? (part three)

You may be an ideal candidate for mediation. Here's a short checklist to find out.

Positive signs:
Are you in control of your emotions?
Are you and your spouse on speaking terms?
Are you willing to take responsibility for creating and honoring your divorce agreement?

Negative signs:
Is there a history of physical or mental abuse to you or the kids?
Is there a significant power or financial imbalance in your marriage?
Are you interested in a fair and peaceful solution, or would you rather just nail that rotten so-and-so to the wall?

Questions to Ask a Prospective Mediator

Look for someone you can trust and communicate with, and who is empathetic to your concerns. Don't pick someone lightly, or based on the cheapest rate, because he or she will be helping you settle on terms you may have to live with for a long time.

Before you meet with the mediator for the first time, you should prepare some well-thought-out questions. Here are a few suggestions of what to ask:

• What is your training and experience? Ask about direct experience dealing with cases like yours, especially if there are aspects that make your case unique. Does the mediator have any special skills you may need -- such as the ability to speak another language? Since mediation is based on clarity of communication, it may be important for you to conduct your mediation in a language other than English.
• What is your approach? Some mediators may want to meet separately with you and your spouse before sitting down with the two of you together; others may want your children involved in and attending the mediation sessions. Find out what techniques will be used and how your mediation will be conducted.
• Do you have any biases? We all have certain viewpoints which cloud our judgment, and mediators are not exempt. You should ask if your mediator has any strong views about the role of mothers or fathers, or about the care of children.
• Should we have our children involved in the mediation process? If so, how?
• Should a new partner(s) be involved in the process?
• What leads to unsuccessful mediation?
• How much is it going to cost?
• How much time will the process take?
• What is the role of my lawyer?

With files from Jeffrey Cottrill.