From Arnold and Maria to your newly divorced neighbor down the street, why does it seem
like everyone these days who is contemplating divorce or separation is also considering divorce
mediation?
When a divorce is privately mediated rather than litigated, you and your soon-to-be former spouse
meet with a neutral third party, the mediator. With the mediator’s help, you will all work through
the issues needed to be addressed in order to end your marriage in an amicable and cost-effective
manner. But does divorce mediation really work for everyone? And what about child custody
agreements–are these addressed during the mediation process?
If you have done any online research for answers to your questions about private (non-court
mandated) divorce mediation, chances are you have come across a great deal of conflicting–and
just plain false–information. So to clear the air, we decided to address the top seven myths about
mediation and give you the facts about what this divorce process really entails.
1 – Myth: Mediation is for Everyone
Fact: In order to move forward with divorce mediation, both parties must agree to participate.
Unlike being served with divorce papers, you cannot be served a summons to show up for a
private mediation session (be aware that the rules for court mandated mediation are different).
If your former spouse asks you to participate in mediation, you and/or your lawyer should strongly
consider the merits of this process if conditions such as the following are present:
• a history of physical/emotional abuse
• substance abuse or mental health issues that lead to impaired judgment
• you suspect that your former spouse is hiding assets
Because mediation requires both parties to actively participate in deciding the terms of their
divorce, the emotional impact of lingering abuse issues, impaired judgment, or a former spouse who
is hiding something are concerns that just do not fit this model of “amicable divorce”.
2 – Myth: Mediation Means I Will Settle For Less Than What I Deserve
Fact: Because divorce mediation can be less expensive in the long-run than a litigated divorce,
you may both be able to hang on to more of your money up front in the form of reduced legal
costs. When it comes to dividing the assets of your marriage, remember that New Jersey is an
equitable distribution state–marital assets, property, and debt that have been accumulated during
the course of a marriage are divided fairly and equitably in a divorce. Whether you work with
a mediator or go before a judge, it is in your best interest to have a lawyer with you to make
your case for what is a “fair and equitable” division of assets. Remember, a mediator only works
with the information you provide; a good lawyer can help you prepare and present the necessary
documents to strengthen your claims.
If your divorce law firm has both qualified mediators and attorneys, as we have at Weinberger
Divorce & Family Law Group, LLC, please be aware that the firm cannot serve you in both capacities. A mediator
acts in a neutral role to help both parties whereas an attorney acts on one person’s behalf in an
independent advocate role.
3 – Myth: Lawyers Want to Litigate Not Mediate
Fact: The American Bar Association has embraced divorce mediation since 1984 when the
ABA put out their own set of standards for attorneys who wished to serve as divorce mediators.
By 2000, the family law section of the American Bar Association collaborated with national
mediation groups to devise the Model Standards of Practice for Family and Divorce Mediation.
You will find that many law firms, including Weinberger Divorce & Family Law Group, LLC , have attorneys on staff
who serve as impartial third party mediators. Divorce mediators do not have to be lawyers, but
we think it is to your benefit to have someone mediate who is trained in family and matrimonial
law.
We also believe that it is still in your best interest to have a lawyer by your side to guide and help
you during the mediation process. The choice to undergo private mediation is up to you and your
spouse. If your lawyer suggests that ligation in your case is a better way to proceed, make sure
you understand the reasoning behind this–and do not be reluctant to begin the process.
4 – Myth: Mediation Will Not Work Because I Cannot Stand to be in the Same Room as My
Former Spouse, Let Alone Negotiate With This Person.
Fact: We get it. You can’t even make eye contact with your former spouse without an argument
breaking out, so how are you supposed to work together on an agreement? Helping you
communicate with each other is at the heart of a mediator’s job. A good mediator keeps your
conversations productive and focused, especially when you find yourselves fighting the same old
fights. As the mediation process steers you toward making rational decisions you both think are
fair, we find this can often, but not always, lead to decreased animosity between parties. In cases
where mediation is desired by both spouses, but being in the same room is just not productive
at this time, it is possible to schedule separate appointments to work with the mediator, with the
goal of eventually being able to meet together.
5 – Myth: The Mediator’s Goal is to Save My Marriage
Fact: Mediators are not family or couples therapists. Their job is not to offer marital counseling
or somehow patch things up. By using mediation, both parties are agreeing that the issues in
a divorce need to be addressed and decided. Mediators are there to focus only on helping you
come up with a way to separate that you both think is fair and workable.
6 – Myth: Mediation Will Not Work If Child Custody Issues Are Involved
Fact: Research supports the notion that when families go through mediation rather than a waged
custody battle in court, children tend to have better long-term relationships with both parents.
What is behind this? As parents hammer out an agreement in mediation, it is often a time when
both parties face the fact that they will have an ongoing relationship as parents. It is also an
opportunity for spouses to realize that when it comes to the kids, they can be on the same side:
putting their children first. This is not to say that all child custody agreements should be handled
by a mediator. In instances where mediation is appropriate, however, we find that when parties
come up with a parenting plan they’ve jointly agreed on and gain tools to communicate with each
other about their children, it benefits the whole family.
7 – Myth: Determining Who is a Good Mediator is Like Finding a Needle in a Haystack
Fact: Currently, no state requires a private mediator to be licensed or certified, including New
Jersey. As a result, there is no shortage of people who have simply hung out their shingle
as a divorce mediator, some with questionable credentials. How do you find a good divorce
mediator? Look for someone with a strong knowledge of the state’s divorce laws (mediators are
not supposed to give legal advice, but can dispense legal information), a graduate degree in law,
at least 60 hours in mediation training/experience, and a commitment to following the ModelStandards of Practice for Family and Divorce Mediation.
At Weinberger Divorce & Family Law Group, LLC, we provide private divorce mediators as well as divorce attorneys
who are experienced in all aspects of the divorce process. For your personal consultation on
whether our services match your needs, please call us at (973) 520-8822 or use our Contact Us
form to schedule your initial consultation.