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Divorce: The Fork in the Road: Which way you travel is Important

16th November 2010
By Brian James in Divorce
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Whenever we meet bumps in the road there is usually more than one path to choose. We make these choices as we choose a school, a career, a home, and a mate. But these choices, like all choices, are rarely written in stone. One of the beauties of life is that we get to evaluate and consider our decisions many times and make changes and adjustments as time goes on. These decisions donít come without stress, effort, and pain. Such is the choice to end a marriage. But simply choosing to end a marriage doesnít mean that all the decisions are made. In fact, a long list of challenges begins immediately. First, and foremost, is the choice of a process to end the marriage: mediation or court divorce proceedings. Which path you choose has both short and long term consequences.

Many couples choose mediation for a variety of reasons. The primary reason may be that each party has more individual control and guidance over the process. Turning everything over to lawyers takes much of the control out of the individualís hands and an entirely new set of protocols take over. Couples who wish to stay intimately involved in the process often choose mediation. In the mediation process, each of the parties has input into all aspects of the manner in which assets are divided and custodial issues are resolved.

Cost is also an important factor. Studies show that mediation can cost 1/10 to 1/3 less than divorce court proceedings. Protecting the marital assets and directing them to higher priorities is essential. In mediation the couple determines how much is spent on negotiations, where in divorce court, with the lengthy proceedings, costs can quickly multiply.

When both the husband and the wife can make their priorities clear and have a voice in the development of the final settlement, it gives each of them ownership in the process. The process becomes a negotiation rather than a decree. The mediator is the architect in this negation and his or her sensitivity becomes paramount to the soundness of the final settlement and its contents. With both parties having equal voice, the level of conflict can escalate and mutual concerns can be confused. Some degree of conflict is necessary to bring all issues to the light of day and to help the mediator determine a hierarchy of priorities. The husband and wife will always bring matters to the table that they have strong feelings about and the degree of conflict that arises will tell the mediator just how committed each party is to a specific issue. I know that it sounds absurd to encourage dissonance but with guidance this conflict can clarify and illuminate the strength of each personís commitment to various topics. However, the skilled mediator will guide this conflict in a logical and thoughtful progression to a final agreement. The idea of two people simply shouting at each other is hardly productive. But the mediator must translate this conflict into mutually agreeable terms.

As couples establish their respective priorities ii is important to note that these concerns are going to receive more attention from a mediator than a divorce attorney or judge. Attorneys with significant case loads have little time to weigh and measure individual concerns with the attention they actually require. A mediatorís primary function is to do just thatólisten. In divorce court you may only receive two to three minutes to testify in your case and this is hardly a venue where all your issues will be heard. In mediation the couple is afforded the time and venue to make their matters know and have them addressed in a sensitive manner. As this is done in private, a thorough hearing is the norm, not the exception.

Mediation offers both parties a voice and it does so at a greatly reduced financial investment than legal proceedings. The amount of marital assets spent on the divorce greatly reduces the amount left to be divided by both spouses and most importantly left to the coupleís children.

Confidentiality is also an important consideration when intimate details of a coupleís relationship are revealed. In divorce court these matters become public record for perpetuity and the couple has no control over who will ultimately access them. Divorce records are often sealed but can be used in future proceedings. There even exists the possibility that these documents will eventually be available online. In mediation, the strictest confidentiality guidelines are utilized and both parties have discretion as to how they are accessed and used. This fosters greater openness and an atmosphere of honesty that can aid the entire process.

The open and honest nature of mediation involves significantly less stress than the adversarial climate of divorce court. Quite simply, the structure of a court proceeding is stressful. Because the couple has no say in the scheduling or timing of the proceeding or where is will take place, the stress of uncertainty and loss of control heightens the level of helplessness couples feel when entering into a court proceeding. The simple fact of being able to schedule your own sessions and have them in familiar surroundings can lend a sense of control to the process.

Finally, remembering life after the end of a marriage is important. Where there is a complex property settlement and most especially where children are involved, considering the consequences of divorce are vital. In an adversarial divorce court proceeding, things that are said and done frequently take on a life of their own. There are often no ways to diminish the effect these actions have upon the children. Where parents are divided in a public conflict it is hard to shield children from knowledge and exposure to these conflicts. Mediation offers privacy and time to resolve conflicts before they become public battles. Through mediation, parents have time to consider and come to agreement as to how marital issues will be presented to the children. The advantages to the children are obvious. Allowing parents to exercise this control and shield their children from the most negative aspects of divorce is the highest priority of a sensitive and intuitive mediator.

In closing, a mediator offers a way to make a painful situation less stressful and traumatic by listening and guiding, rather than imposing superficial guidelines that are not unique to the couple. Each couple brings a unique story to the mediation, and this story deserves the time and attention required to give it respect and use its details to come to a mutually agreeable conclusion. When this is accomplished, the mediator can say with assurance, that the mediation has been successful.
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