Divorcing and Mediating, 101

Posted on February 17, 2012 by

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Did you ever get the feeling you might have missed something?

(In point of fact, I had that feeling all through organic chemistry, and, since I never really could figure out what I missed–but knew for certain I hadn’t gotten ‘it’–I wisely took a pass on medical school. There’s a moral in that story somewhere–let’s save it for another day.)

Surely if we were all to write in our experiences with ‘missing something,’ they could fill a tome, but I want to make sure that you haven’t missed something in these posts due to an error on my part, so here, late in the game, I’ll try to make sure you understand something crucial: the divorce process.

Back into my Julie-Andrews-let’s-start-at-the-very-beginning mode I leap. Do you actually know what steps you have to take to get a divorce? If you do, either let your eyes glaze over, or skip the next chunk. If not, it’s worth learning the following:

Let’s say, for hypothetical reasons (and because I rarely get to write in the second person), the person wanting to get a divorce is, well,  you.

Here’s what you do: You have a paper, called a petition, written up saying you want a divorce (there’s a lot of papers written in this world saying the obvious–just ask my high school English teacher daughter). This petition is filed in court. Your spouse is served the petition and gets a certain amount of time to–you’ve got it–respond in what is known as (this is true brilliance) a response.

Then comes the fun part. You and your spouse share all sorts of information, which is most likely the last thing you feel like doing. You share information about children and money and why you hate Newt Gingrich–you get the idea.

Detour: Here’s where mediation enters–and of course we’ll come back to that. Some places actually require the couple to attempt to settle their divorce this way. If you and your spouse successfully do this, you just sign a document that holds you to what you agreed (that is legally binding, by the way. Mediation isn’t  just play-time.). A judge reviews your agreement, approves it–and the divorce decree is handed down from upon high.

Back from our detour: If you can’t or won’t mediate, you and your spouse hire lawyers for lots of money to represent your sides and present your arguments about why she doesn’t deserve a penny and he shouldn’t get to see the kids until they’re 65 and losing their hair. It’s called an adversarial process, and anyone who has seen their friends use lawyers to divorce can probably attest the accuracy of the word ‘adversarial.’

If your lawyers are worth their very significant salt–and you aren’t completely impossible, or you’re not Heather Mills–usually you and your lawyer and your spouse and his lawyer finally write up an agreement. Some or all of you go in front of aforesaid judge–and, bang, you’ve got a divorce decree.

Steps in the divorce process (image from people.howstuffworks.com)

If you’re filled with insatiable anger, or one of you is a gazillionaire, or you have a lawyer who has nothing else to do, this can go to trial. During trial, each of your lawyers again presents each of your sides–this time to the amusement of the judge–and now, instead of you and spouse deciding who gets what, the judge decides and now you have a divorce decree, detailing aforesaid judge’s opinions on who gets what where and when.

If one of you is SUPER-angry, you’re both gazillionaires, and/or your lawyer is still bored (or just happy riding the gravy train)–you could appeal the opinion.

But, seriously [and here's an awful pun coming--my father would be so proud]: does this sound appealing?

So let’s go back to the detour, where you get to pick mediation.

And here you have it folks: the good, the bad, and the ugly.

Ready?

Your divorce mediator is not your therapist.

Whew–there, we’ve said it; it’s out there. Mediation is not a means to resolve past conflicts. There was a time and a place to work on old issues in the marriage–but it’s long over by the time you’ve gotten to mediation.

That’s right–you do not get to fight over past hurts during the process of mediation. I’m sorry.

So how does divorce mediation work?

Well, the mediator’s job in the divorce mediation process is simply to assist the spouses in figuring out the issues that matter most to them (really matter, not issues brought up to obscure the process), and then help set a path to resolving those issues.

That’s not to say the mediator’s a cold fish. Rather she works long and hard to help figure out what really matters, and to assist that change on behalf of the partners from, as explained in the post about Julie and Jim, from, unmovably-held positions, to underlying needs and wants.

Although some mediators are lawyers, there are no lawyers other than that present during the mediation process. The process itself is essentially a series of two-hour-long meetings at the mediator’s office. It’s just you, your soon-to-be-ex, and the mediator.

Unlike the situation with  a litigated divorce, in which most of your lawyer’s work is done when you’re not with her, here almost all of the mediator’s time (and thus incurred fees) is spent sitting in the presence of the couple. Each member of the couple can always see what step of the process they’re at–there’s simply much more economic and work transparency than is standard with an attorney.

And as the sessions go on–if that’s necessary; some couples finish rapidly–each partner can bring up situations that arise as the divorce process progresses, and hammer them out in mediation–rather than, for example. . .

  1.  you trying to raise your concern with your lawyer, who doesn’t call you back until you’ve almost forgotten why you bothered in the first place. . .
  2. who passes your message on to his opposing lawyer, when he gets around to it–and after they’ve discussed how en-enthused they are about this year’s American Bar Association Convention. . .
  3. Then when this second lawyer gets around to it on his end he calls your spouse, and, in this game of ‘Operator,’ his transmission of your message makes no sense.
  4. So your spouse, not having taken Gibberish in high-school, provides the response he thinks makes the most sense given that no one understands by this point what you actually wanted. . .
  5. Response: “Um, no.”

Thus each partner ends up feeling unheard by the divorcing spouse in an adversarial divorce–and sometimes shocked by what’s mandated in an over-zealous divorce decree, since they never knew these issues mattered to their exes at all–and the communication process was a complete failure.

The fact that mediators often react to issues the couple brings up is not to say that mediators don’t prepare.  They do–and will often come in with a check list that details a number of the issues that most couples will need to address as they go through this process (click Divorce mediation checklist to get an idea of what that might look like).

So you hammer it out–you get it done–and you’ve seen the advantages to doing it this way in previous posts.

Ultimately, all divorces must be approved by a court of law to become effective. But one more point for the mediation side: courts tend to approve a mediated settlements more quickly.

Now you’ve got the steps down–and, I don’t know: you could decide that you like prolonged fighting or have millions of dollars spending to keep away from your spouse, that you are in fact Heather Mills,  or you believe the legal profession is struggling in this economy, too, and it’s your obligation to keep them working.

Or maybe you just love the game of Operator where you communicate via four  people each time you someone has an idea (or that you have, indeed, learned to speak Gibberish and thus your spouse’s communication across two lawyers who have other topics on their mind is crystal clear to you–and the answer is still ‘no,’ of course. . .

. . .but if you don’t fit into the categories above, divorce mediation might just be your speed.

For More Information On Divorce Mediation: