Why should I use mediation?
Although it seems like more and more people are learning about mediation and the benefits it can offer you when going through a divorce, it is important to understand that there are far more benefits then the obvious…saving money!
Here are some of the questions (and answers) I have received from couples who are “shopping” to see if mediation is right for them.
(1) What if he/she hides assets?
What if? This can certainly happen, but it is not a problem that you face only in mediation. If your spouse wants to hide something, he or she will try to hide it in any process, whether it be mediation or litigation. However, due to the informality of mediation, it seems to promote honesty (and sometimes spontaneous admissions). If you think about it this way, in mediation the couple is sitting there together, along with their mediator, talking. They are face to face. Everything is transparent and in “real time”. However, in litigation, the SAME information is requested and exchanged through the discovery process. This process allows each spouses attorney to sit and review the requests, think about the best strategy in how to release the information…there is a lot of thought that goes into responding and offering records. Very often the records are not released and the other party must subpeona them from the bank, etc. It turns into a game of chess…this to me seems like a far more devious process than sitting in a room across the table from each other all reviewing the documents together. Not to mention, less expensive and less emotionally exhausting!
(2) What if he/she does not give me what I want?
Well..this is the tough one…what makes you think the court WILL give you what you want? I have yet to come across an individual who has already been through a litigated divorce who claims to have “got everything” they wanted. It doesn’t happen. It is a fallacy. Family Court is probably the court that gives out the LEAST amount of justice on a daily basis. Think about it…usually the divorce involves children…and if not children then the hard earned money of one or another spouse. These are very sensitive and highly emotional issues. No one wants to share their kids…or their money for that matter. It can never be FAIR, it will never feel FAIR…a family that no longer lives together as a family is not FAIR. To add to the stress of a knowingly unfair agreement is the unknown of family court. It is a very subjective area of law. There are some rules that are pretty straight forward, but the issues that are usually MOST important are the ones that do not have bright line rules…instead the Judge has “discretion” to make his decision based on what HE or SHE (yes, one person) feels is reasonable and best. Oh, and to make this even more challenging, because these fine men and woman on the bench hear hundreds of cases that include a variety of lies, they are very jaded…admittedly or not, and so can easily see a lie where truth exists. The most shocking I have seen is when sexual abuse is clearly apparent and it is ignored because it is so often a lie. Every time I hear a story on the news regarding a man who has killed his wife and kids (just last week in San Diego actually, after the wife had filed over 60 complaints for domestic violence…) it makes me wonder…what goes through the head of the Judge who refused the restraining order because they felt the woman was exaggerating??
(3) What if we cannot come to an agreement regarding the kids?
This is actually an easy one…if you are both good parents and both have TIME to spend with the children, the court will default to a 50/50 split. Clearly, this may not apply to each and every case, but for the most part, at least in San Diego, mom and dad share…50/50.
(4) I cant sit in the same room with him/her…how can I mediate?
First, usually the mediation room is a different environment than you are each used to, so often it is possible for the two of you to sit in a room together. However, if it absolutely cannot happen, then we CAN work separately. What I mean by this is I meet with one of you, then go back to the other person with proposals. I then take any changes to the proposals back to the other spouse and so on…this is clearly not the most efficient way to mediate, but still better than litigation!
The bottom line is that mediation is a healthier process. It is a friendly process. At a time when you are most vulnerable and emotional, the mediation room can be a safe haven to discuss both the financial agreements as well as the emotional let downs. In my mediation room there is laughter, tears, sighs and yelling. But in the end there is usually forgiveness and optimism of the new beginnings that lie ahead. I feel so fortunate that this is my job. I get to help people when they are at there worst and I watch them leave the process a little better than they came in…not a broken shell of a person as I use to see when I worked in firms that litigated divorce.
If you have ANY doubt of what your first step should be if you are facing a divorce – make an appointment for a free consultation to determine if this is the right process for you. If not with me, with someone else. Just do not think the first step has to be in an attorneys office paying a $5,000 retainer. There is a better way.