Tag Archives: Mediation

The Case for a Kinder Divorce

Divorce can be the worst time in your life.  Aside from the heartbreak involved, there are legal and financial issues that must be dealt with and that can change your life in drastic ways.  On top of that, many times you have to move to a new home or apartment, disrupt your children, and create a new normal all while fighting it out with your new ex-spouse.

Divorce can be a damaging financial blow.  Many times it involves splitting up assets and selling things off.  Starting over in your thirties, forties or fifties can be extremely discouraging.  To make matters worse, legal fees and court costs can eat up a great portion of your personal wealth if your divorce is hotly contested and lengthy.  The wealthier of the two spouses may even be required by the court to pay for both attorneys.  That means every time the lawyers make a phone call, that party is paying double fees for the time that is ticking away.  Every status conference, every discovery request, every minute of both lawyers’ time is subtracting hundreds of dollars from the pie that you and your spouse will divide in your marital settlement agreement, and from the wealth you have accumulated to support your children.

The court will likely appoint a guardian ad litem to determine the best interest of your children.  That’s right.  As a couple and as parents you will not be deciding the best interest of your children, particularly if you can’t agree, but a third party will be doing so by making a recommendation to the court.  That third party will have much more say the more you fight with your spouse and the less you agree upon regarding the placement and rearing of your children.  If you show the GAL that you both care about the best interest of your children and you are committed to doing what is best for them, your joint decisions carry much more weight and the GAL is very likely to recommend what you jointly decide for your kids.

There are less expensive, less taxing ways to get a divorce.  A judge does not have to make all the final decisions for you.  In fact, you can make all the decisions together, if you can be civil and come to an agreement together.  Then all you have to do is have your agreement drawn up by a lawyer, or you can write it up yourself with the forms at the local clerk of court’s office, and file it with the court as a marital settlement agreement.  There may be some pitfalls to doing it yourself, because you are not a lawyer and you may not think of everything or you may not draw it up in a way that a judge will accept without putting on a trial to make sure you’ve considered everything.  If a judge does that to you, then you could end up in court anyway.  Then again, many folks divorce without lawyers.

There are several new family law styles being practiced by attorneys these days.  You may want to check into collaborative divorce or cooperative divorce.  Those are topics for another article.

There is an even gentler and more cost-effective approach.  In a divorce mediation where you hire the mediator and no lawyers, you and your spouse can work with the mediator to bring about a marital settlement agreement that you both can live with, without paying lawyers to litigate at all.  Sure, you can also hire lawyers and bring them to mediation, but a good mediator is going to want to talk to you about your needs and find a good fit for the family, rather than allow two lawyers to bicker like they would in court.

The intangible benefits of getting a divorce in a more peaceful manner go without saying.  Imagine your divorce running smoothly, settling fairly easily, and your relationship with the mother or father of your child remaining strong so that you can be the best parents for your child(ren) together even after you are no longer married.  Imagine not having to spend more money than you have to, not losing or gaining weight or developing ulcers or other stress-related health issues that can often result from prolonged stress.  Imagine not walking away from your divorce bitter and exhausted.

Surely, you can work out an agreeable settlement with the person you once loved, maybe still love, and the one you once agreed to commit your life to for better or worse.  You can still live happily ever after, even if divorce is the only way you can work things out.

This article is for general information purposes only.  It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it or an attempt to create an attorney-client relationship.  Keep in mind that the law changes frequently based on legislation and case law.  If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts.  If you live in another state, please consult a licensed attorney in your state.  Dana Boyle is licensed in the state of Wisconsin.

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Why Hire a Mediator?

Success Rate

Most legal disputes settle.  Often times the parties have already hired attorneys and paid hefty legal fees so that their lawyers can negotiate back and forth to come to a resolution prior to going to court.  Sometimes lawyers hire a mediator and the parties split the cost, in addition to legal fees they’ve already paid.  Parties may even pay lawyers for their time during the mediation.

Studies indicate that most parties, even the most opposed parties, resolve their disputes in mediation, even if they have never tried mediation before.  Overall, mediation is about 75% effective.

Save Money

If most legal disputes settle anyway, why choose mediation instead of hiring lawyers and letting them resolve the dispute between them?  Most lawyers charge an hourly rate or a flat fee that estimates the time or work involved in handling your case.  If two parties pay separate lawyers an hourly rate of say, $185 per hour, and both have to work 10 hours to get your case resolved, you’ve spent at least $3,700 to settle your case between the two parties, not including additional filing fees or charges.

In contrast, a mediator usually charges an hourly or flat fee as well, but the fee is split between the parties, and mediations average 4 hours.  (Obviously, some are longer and some are shorter.)  Even if the mediator charges the same hourly rate, at 4 hours, you’ve only spent $740, and you will split that fee with the other party, so you are only down $370 in that hypothetical.  (Rates vary for lawyers and mediators.  Check with your mediator.)  It can be much more economical.

Having Your Say

Mediation is not binding.  In other words, the mediator only facilitates communication between the parties and does their best to find common ground to encourage resolution that both parties can live with.  Nothing the mediator says or does is binding and, unless you sign a settlement document that you agree to, you can walk away from a mediation if it isn’t going your way.

The mediator is not a judge or a lawyer for the purposes of your mediation.  They do not and cannot offer legal advice or tell you what a judge might or might not do.  Instead, they get to the heart of the dispute.  They listen to each party and help them craft a settlement that takes both sides’ interests into account.

This is not true of other forms of dispute resolution, including arbitration or going to court.  In a courtroom, the judge is going to apply the law to your particular set of facts and decide based on what the statues and cases say.  If the facts are not in your favor, you are likely to lose and you have nothing to say about it.  If the judge orders you to do something, you must do it.  You may not like the result, and you may end up paying part or all of the other side’s fees and costs in some types of cases.

Even if you decide to appeal and see if the higher court will see your side, it can drag out your case for years, and you still may not get the result you want.  In fact, most appeals do not result in the judge being overturned.

In mediation, you will not be bound to anything unless you agree to it.

Relationship Repair

More often than not, the people who we have disputes with are people with whom we’d prefer to keep a positive relationship.  It may be that we have a legal issue with our in-laws, a sibling, a neighbor, an employer, a vendor or contractor we have used for years, a friend, a spouse or mate, or someone else who it would benefit us to maintain healthy ties to going into the future.

Mediation can help both parties see the other side’s point of view and repair misunderstandings and hurt feelings so that each party’s reputation remains intact and they can move forward without any grudges or smudges.

Informal Setting

When you go to court, you should dress for court and present yourself in a way that helps the judge to look favorably upon you.  You want to put your best foot forward, and you may feel anxious because you don’t know the law and the procedures of the courtroom.  There are often other people waiting to have their cases heard after you, and they are allowed to sit and hear your testimony even though they are strangers and a court reporter will type every word you say into the record.  You are going to be rushed through, in many cases, because the judge has a full calendar and needs to move through everything on the docket.  It can be intimidating and scary.

In a mediation setting, you may dress and present yourself how you most feel comfortable.  There are no code rules of procedure or conduct that you have to obey, and the law is irrelevant.  Yes, I will repeat that.  The law is irrelevant.  What matters in a mediation is an agreement that both parties can live with.

You won’t be penalized if you didn’t follow the procedures, file the right paperwork, or wear the right shoes.  You will have time to be heard.  No one will rush you or cut you off.  You will be in a private room where total strangers will not be allowed to hear your private business.  Nobody will record every word you say.

Flexibility & Time

In a litigated case, one that goes to court, you or your lawyer will receive a notice from the court and most of the time the judge will set a date and time and you must be there.  There is little room for flexibility that meets your schedule, because the court has many matters to hear and is often backed up.

You may not get a trial date for two years in some types of cases.  Even if you get a date, you may be second or third in line for that slot, so it may not go on that date anyway.  Each time you have a hearing, you likely have to take time off of work at some inconvenient hour and often end up with another date to return to court again.

In mediation, the facilitator will schedule a time that is within their business hours, but one that you agree to and that meets your schedule.  You can plan ahead and take time off of work one time to resolve the matter.  You may even luck out and get a slot that is early enough or late enough in the day to avoid missing work at all.

Conclusion

As you can see, mediation saves time, frustration, money and often saves face all while effectively resolving your dispute.

If mediation sounds right for your dispute and you’d like to know how it works or schedule a mediation, I’d be happy to consult with you.

This article is for general information purposes only.  It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it.  Keep in mind that the law changes frequently based on legislation and case law.  If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts.  If you live in another state, please consult a licensed attorney in your state.  Dana Boyle is licensed in the state of Wisconsin.

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Filed under Mediation