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Mediation instead of litigation

For those seeking to have a little more control over decision-making in the divorce negotiation process, mediation is an out-of-court option.

A mediator remains neutral throughout the divorce process, facilitating a settlement and aiming for win-win situations for both sides. Depending on the persons involved, mediation can be cheaper than court costs, and can take less time. However, if the process is taking longer than it should, a spouse may be using the mediation as a stall tactic. If this is the case, get out of the mediation, asserts Susan Goldstein, family law attorney and co-author with Valerie Colb of The Smart Divorce: A Practical Guide to the 200 Things You Must Know.

"Mediation has become a popular method of divorce outside of the courtroom," says Margorie Engel, author and expert in families complicated by divorce and remarriage. She says even if you don't resolve every issue during in the process, at least you can limit what is decided within the courts.

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Although there are currently no standard credentials required for mediators nationwide, some states and mediation organizations have their own mediation codes and standards. Most states do have Web sites outlining the legislation related to mediation and divorce, according to the Academy of Family Mediators, www.mediators.org. The AFM offers www.divorcereform.org as a site that includes most the legislation for most states.

Goldstein strongly recommends choosing a mediator that is a lawyer, and then checking to see if the lawyer has a bias of their own. "The problem arises when someone later says, 'I was entitled to so much more'; that's a problem that comes out when non-lawyers do mediation," Goldstein says.

Keep in mind, when you sign a divorce agreement in a mediation, it is a legally binding court order. When looking for a mediator, Goldstein advises you to examine their retainer agreement, which outlines what services are to be performed. Situations that are not ideal for a mediation: if there is large discrepancy of money or power, or alleged spousal abuse.

Mediation vs. Litigation
Mediation
Litigation

Mediation fees, a review by a consulting attorney and paperwork preparation may cost less than $5,000.

Attorney fees run up to $30,000.

With a neutral mediator, you problem solve to design an agreement that works for you and your family.

Your attorney will negotiate for you.

You can try out various parenting plans to see if they work. You can modify the plans as your children get older without returning to court.

The court will determine when you have custody of your children. Changes can be made by: agreeing to them and filing with the court or litigating -- having the judge decide if changes are merited.

Child support, spousal support and parenting plans are more likely to be maintained when mutually decided.

Spouse may not feel committed to the results because of a lack of participation in the process, bitterness fostered during the proceedings or unfairness of the result.

Source: Adapted from articles written by Royce Orleans Hurst, Esq., of the Law and Mediation Offices of Royce Orleans Hurst, Newport Beach, Calif., cited by Divorcewizards.com

-- Posted: June 30, 1999

 

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See Also
The do's and don'ts of getting divorced
Do-it-yourself divorce
Common divorce mistakes
Ten questions to ask your attorney in the initial interview
The cost of a divorce
Divorce and debt
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