DIVORCE MEDIATION: AN ALTERNATIVE TO LITIGATION

Divorce

What do Neil Young, Mariah Carey, Hilary Duff, David Duchovny, Gwenth Paltrow, and Bruce Jenner have in common? Well, if you have even glanced at a tabloid in the last year, you would know they are some of the most recent celebrities to call it quits. Because they are celebrities, their breakups have been played out in the media for all to see. Some are nasty – the divorce between Arnold Schwarzenegger and Maria Shriver comes to mind. Some are expensive. Mel Gibson’s divorce to Robyn Moore in 2009 reportedly cost him $425 million – the largest celebrity settlement to date. Other divorces are emotional and tragic such as Elvis and Pricilla Presley’s, or Prince Charles and Princess Diana’s, and they still make headlines today, decades after their breakup. You don’t have to be a celebrity or even read the papers to know that once a marriage has broken down the impact can be devastating – not only to the individuals involved, but also to their children, family, friends and employers. This impact is traumatic both emotionally and financially.

If you were asked how many marriages end in divorce, most of us would quickly respond by saying at least 50%. This statistic is true in the United States, but in Canada, the answer is actually less than 40%, which is still a lot. That’s just the national average. Your profession can play a big role in your personal life. Some job professions have divorce rates so high, some think it just comes with the job. Entertainers and athletes have high divorce rates for obvious reasons, but so do nurses, physicians, military personnel, and law enforcement. High stress levels due to long hours and demanding work associated with these career choices make relationship stability harder to maintain. These professions have divorce rates as high as 80%! Here are some other divorce facts you may not be as familiar with:

  • 80% of custodial mothers receive a support award, while only 30% percent of custodial fathers receive a support award;
  • 47% of non-custodial mothers totally default on support, while only 27% of non- custodial fathers totally default on support;
  • 75% of children with divorced parents live with their mother;
  • 28% of children living with a divorced parent live in a household with an income below the poverty line.

As a result, it may come to you as no surprise that couples seeking divorce today have lost confidence in the customary system of divorce resolution, which involves litigation. In short, people feel litigation is expensive, adversarial, and unable to cope with conflict. People cannot justify the legal costs, and impairment of their wealth. People simply do not trust the legal separation will be fair.

While no one wants to have to think about separation and divorce, it is encouraging to know that there is an alternative litigation, and its pitfalls: divorce mediation.

Divorce Mediation versus Traditional Litigation

In traditional divorce litigation, a couple seeking divorce obtain independent legal council who then meet to obtain a settlement on their behalf. Divorce mediation, on the other hand, is where the couple seeking divorce meet with a neutral third party, the mediator, who assists the couple to work through the issues, and come to a resolution to end the marriage as amicably, and cost effectively as possible. Issues covered include, but are not limited, to the following:

  • Division of property (Assets/Liabilities)
  • Child support
  • Spousal support
  • Parenting time

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During separation and divorce, couples often feel they have lost control of the life they once knew. Mediation allows couples to preserve their identity and decision making. Couples make the decisions throughout the process on the division of marital assets and liabilities, the parenting plan, the format and structure of communication going forward, and a framework to resolve potential issues in the future. A divorce mediator is a facilitator who assists the parties to negotiate the complexities of conflict in a discrete, diplomatic, and sensitive manner. This enables parties to communicate, negotiate, and cooperate to resolve issues outside of court. Mediation usually involves on average eight or more sessions, and will depend upon the complexity and number of issues. All of the communications made during mediation are “off the record”, meaning that neither party is allowed to subsequently reveal communications made during mediation to a judge or an arbitrator if an agreement is not reached. The purpose is to encourage a free and healthy exchange of ideas during the mediation process without fear that the ideas or proposals could be used against them subsequently in court. If an agreement or agreements are reached during mediation, the divorce mediator typically translates the provisions into a resolution plan. The parties then review the resolution plan with their lawyers who provide legal advice and practical suggestions. Very often, the agreements reached in mediation are translated into a legally binding contract called a Separation Agreement. Until this occurs, the agreements reached in mediation are not binding on either party.

Over 90% of those who go through the mediation process resolve their differences. The result is a peaceful divorce that reduces the long-term economic, mental health, physical, and social consequences of divorce. Separation and divorce mediation is becoming more common because it works. It is a cost effective alternative to litigation that is collaborative, and allows couples to determine the optimal resolution so clients can confidently move on to the next chapter of their life – not waste it fighting in court.