When many couples in Oakland County think of divorce, they may picture an emotionally charged courtroom setting heated with emotions of hurt, anger and frustration. What many couples don't realize, however, is that many alternative dispute resolution options are available to them, including mediation.
To Mediate or To Litigate?
Mediation is a broad term that encompasses several different methods of alternate dispute resolution. The most widely utilized form of mediation in divorce cases is facilitative mediation. This is a process in which the parties choose a third-party neutral to facilitate communication between the parties in the hope of reaching an amicable settlement agreement. Most domestic relations mediators are family law attorneys. All mediators must be trained. In Oakland County, the court will require the parties to attempt mediation with a third-party neutral before the scheduled trial date.
Facilitative mediation may be conducted with or without attorneys present. The biggest benefit to mediating without attorneys is that it saves the parties money. The downside is that the parties do not have the benefit of counsel to advise them before making a decision, won't know the legal impact of any proposed settlement, and may make decisions based on incomplete details or ignore important details that an attorney would not. Most parties choose to attend mediation with their attorney. Although mediation is not always the best option for every divorcing couple, many still benefit from this process because:
- The parties have control over what they discuss and also have the final say over the terms of their divorce agreement.
- Mediation is private and confidential.
- Mediation often results in a settlement agreement, saving the parties money that would otherwise be spent on attorney fees to litigate the case.
- The parties may reach a resolution faster, because they are not at the mercy of the court's schedule.
- It can result in a better long-term relationship with an ex-spouse because it removes the possibility of "fighting" in court.
In contrast to litigation, the mediator seeks to help couples come to a better understanding and establish a beneficial resolution for both parties.
Myths About Mediation
Some people believe that they must mediate without their attorney present. This is not true. The parties will decide, with their individual counsel, whether to conduct mediation with or without counsel present. The mediator does not represent either party and may not give legal advice. Parties ALWAYS have the right to consult with counsel before, during and after mediation. Whether counsel will be physically present at mediation (this is the typical process, and the one that is recommended) is a decision each person will make in his or her own case.
Another common misconception is that all divorce-related issues must be solved during the mediation process. While drafting a marital settlement, every couple has the ability to reserve issues for the mediation process and others for the court that they cannot solve themselves. For instance, if a couple has decided how they will divide their assets but can't agree on a parenting plan, the parties may choose to utilize a parenting coordinator or litigate this particular issue if all attempts to resolve the issue by consent fail.
Contact an Attorney
If you and your spouse are considering divorce but are unsure of whether or not mediation is the right choice for you, consult with an attorney who can help you weigh the pros and cons of this divorce settlement option.