Historically speaking, divorce mediation is a new phenomenon.
Until recently, few couples had ever heard of divorce mediation. Fewer still could accurately define mediation as an alternative process for reaching a divorce settlement. Those who had heard of mediation either did not associate the word with divorce settlements or had an erroneous conception of the individuals who might actually benefit from the process. Many believed that mediation was reserved for those who had wonderful relationships and would have no difficulty in reaching agreements. Others believed the process would be beneficial only to those couples that had no children, no assets, or no money. The myths and misconceptions surrounding divorce mediation filled the media, further confusing couples and limiting the number of couples who were brave enough or knowledgeable enough to venture into the terrain of mediation.
While it is true that increasingly more people are aware of what divorce mediation is and the advantages it offers to couples, mediation is still an elite choice, reserved for a relatively small population, especially when compared to the number of couples who use traditional avenues for dissolving their marriage.
Further complicating the lack of accurate knowledge of the mediation process and, in particular, the benefits that mediation offers to the majority of the divorcing population, is an underlying and pervasive fear of mediation. Of course, the word “fear” must not be taken too literally. To characterize some individuals as being fearful of mediation, in actuality means that these people believe that mediation is a risky process for them, that by agreeing to mediation, they will lose. Or, to put it a bit differently, mediation means to them that they will end up receiving less or giving more than they would by hiring an attorney as their advocate. To them, the risk of loss is too great to compensate for money to be saved by a more efficient process.
The media has added to this fear by the recent proliferation of articles coaching individuals on how to win in mediation. In and of itself, the concept of winning in mediation is an oxymoron. How do you win in a process that is based on the welfare of the family unit , a process that seeks for all individuals in the family to remain whole, that in effect condemns the win-lose mentality? Clearly winning in mediation is not an achievable goal, since the process itself does not create winners or losers.
Perhaps the most gracious view of the “how to win in mediation articles” is to conclude that the advocates of this approach are trying to help people accept mediation by teaching them to be prepared for the process and therefore not to be fearful. Here you, as the mediation participant, can enter mediation armed with a trunk load of tools for capitalizing on the advantages of mediation and emerging as a victor. While this revised view of winning in mediation is a bit gentler, it does little to accurately portray the process or to dissuade individuals from believing that mediation is a scary proposition.
Let’s approach again the question with which we began. Are you afraid of mediating your divorce? For a number of reasons this might be true. You might, for example, believe:
That your spouse is more knowledgeable and therefore will place you at a disadvantage when discussing finances;
That your spouse is more persuasive, charming, or in other ways a better negotiator;
That you are too emotional and will lose your “cool” or spend the session in tears:
That you are unable to stand up for your rights or adequately advocate for your needs.
In summary, you worry that without someone else representing your “case,” you will not receive a fair deal or, at least not do as well as you would if you used a more traditional approach. You do not trust yourself to stand up for your needs and perhaps the needs of the couple’s children.
Yet despite all these commonly held fears, common even among those who manage to put aside their fears to actually mediate their divorce, the vast majority of those who use divorce mediation express satisfaction with the results of the process. In addition, they, unlike divorce litigants, not only return far less frequently to court for modifications and lack of compliance with agreements, but also have much more satisfactory post-divorce relationships with their ex-spouses.
Given the many advantages of mediation, those who express fear of the process for reasons stated above or just from a general sense of uneasiness, consider that your very fears may be addressed by:
Recognizing that the mediation process should be based on the generation of proposals, not agreements; not until all terms are crafted and both parties are satisfied should proposals be considered agreements;
That individuals never give up their right to legal counsel by entering mediation; lawyers may be used during or after the process to help or to review proposals generated in mediation;
That financial assistance may be provided from financial advisers, who during the process may review , as needed, proposals and help weigh the advantages and disadvantages of different ideas.
Divorcing couples would be best advised to consider their fears, to in fact put them on the table to be addressed with the mediator and their spouse. It is important that mediation participants feel that the process is safe and productive for all parties. It is important that potential mediation candidates accurately understand the process and weigh its advantages and disadvantages unclouded by myths and misconceptions perpetuated by misleading and erroneous conceptions.
Mediation may not be right for all divorcing couples, but its track record does indicate that the vast majority of divorcing individuals make good mediation candidates.
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