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Mediation is a facilitated negotiation. Successful mediation is a negotiation that meets the needs of all of the parties.
In California, which adopted a "no-fault" divorce law in 1970, the process is called "dissolution of marriage." However, for convenience we use the word "divorce" frequently, but we are referring to "dissolution of marriage."
A divorce begins when a couple decides to "uncouple." After a marriage involving years of co-mingling lives and lifestyles the entangled body of a marriage needs to be sorted out. Property accumulated, debts incurred, responsibilities for children, and financial dependency need resolution. In a cooperative divorce couples work out their differences in a way that benefits all parties. We call this process "mediation."
How does this differ from traditional divorce? In a traditional divorce the parties surrender their own wisdom for ideas imposed by legislatures and courts. Each party hires an advocate. Advocates are interested in winning the battle and paying little attention to the war. The drive to win may involve intimidation and great expense – with no guarantees about the result. But even a sense of "winning" is often followed by new battles (appeals, motions to modify previous orders, claims of contempt, etc.). Lives may be put on hold for extended periods during these "battles."
Mediation, on the other hand, is a skilled process that seeks to identify the resources of the parties, the means required to make the transition to separate lives, and discovery of creative ideas to find practical solutions. Final choices are in the hands of the two parties – there is no third party to impose their will on the couple. Mediation is confidential, limiting the disclosures that become part of a public record. Negotiations are conducted in comfortable settings rather than stark courthouses filled with strangers. Costs are significantly less than litigation and compliance with mediated agreements is routinely higher than with court imposed judgments.
The ultimate goal of mediation is to produce an agreement that resolves all the issues arising in a divorce. At Center for Cooperative Divorce we believe the best way to achieve that goal is by:
Insuring each party understands the possible outcome of an issue that is litigated in court rather than mediated;
Addressing both short term and long term issues:
Assisting in fashioning an agreement that is both fair and workable;
Adopting an agreement that recognizes the support necessary for parenting of children; and
Designing a settlement that will hold up over time.
About Mediation – At the Center for Cooperative Divorce
Divorce mediation is being used by an increasing number of couples to work out divorce related issues in a cooperative process as opposed to a competitive and adversarial one. Divorce mediation is a process that can help you in working out the issues of your divorce in a mutually agreeable manner. The process is most successful with couples who want an amiable divorce and who want to cooperate in settling issues.
You should keep in mind that mediation is not marital counseling and it is not legal counseling. Rather it is a means of helping parties negotiate between themselves and work out the details of their divorce.
As the mediators, we will serve as facilitators of your communication process; help you to define the areas of agreement and disagreement and assist in obtaining any needed resource information. We will not be taking sides with either of you nor will we be making any decisions for you.
Mediation at the Center for Cooperative Divorce is typically a four-step process.
Step 1. Setting the stage for mediation.
We believe that mediation begins with getting acquainted and deciding if we can work together. It is important that you feel confident with those people that you employ as consultants in your divorce process. Trust and rapport are essential ingredients in divorce mediation. Setting the stage for mediation also means defining the "rules of the road" in our working together. What agreements are necessary to make the process successful? You might want to agree that all decisions will consider the best interests of the children; or that each party will respect the contributions of the other during the marriage; etc. The roles of each spouse and the mediators are defined (i.e., the mediators will not take sides; each spouse will provide all necessary information to insure a fair and practical agreement).
Step 2. Defining the issues.
Besides being a legal process, divorce is also an emotional process often involving feelings of grief, anger and depression. As we begin to list the issues it is likely that we will encounter a number of emotional responses and perhaps even unfinished business from the marriage. Mediation is not intended to resolve all these issues—but feelings and unfinished business do need to be attended to in such a way that these issues do not overwhelm the mediation process. The mediators will help in managing these issues.
The primary focus of mediation (as applicable) will be to:
- (a) resolve plans for the children (custody);
- (b) agree upon financial support of the children;
- (c) agree upon any financial provisions for the adults; and
- (d) agree upon an equitable division of your community assets and liabilities (property, finances, debts, etc.).
Step 3. Processing the issues.
In addressing the various issues it is helpful to understand the underlying interests of each spouse. This is called "interest-based negotiations," and is very useful in overcoming impasses. Processing the issues includes looking at all possible solutions and not coming to any premature judgments before all the options are on the table. Parties that are willing to be creative and explore a number of alternatives can settle many intense conflicts. Processing the issues may also involve doing some homework; obtaining needed information or meeting with outside consultants. Lastly, processing the issues means negotiating—being willing to talk with each other; to take some risks and to work together. Instead of visualizing yourselves sitting at opposite sides of the table attempting to convince the other side that your way is best, we encourage you to view yourselves as two judges, sitting on the same side of the table, needing to work together to resolve a common problem.
Step 4. Resolving the issues.
This means finding the best match between the issues; what each spouse and the children need, and the abilities and resources to do this. Divorce often means change in life style due to changes in finances. These changes may be anxiety producing. Being sensitive to the effects these changes have on each other and the children, will help in resolving the issues.
Throughout the process, tentative agreements are reached, which can be summarized in a letter to each spouse. When a final agreement is reached, we will prepare a Marital Settlement Agreement draft (the "MSA"). We expect that the MSA will be reviewed by independent legal counsel before it is finalized. If there are any problems with the agreement, we return to mediation so that they may be discussed and resolved promptly.
Once an agreement is reached the MSA can be utilized in obtaining the final judgment of divorce.