So you’re considering separating . . . or you have made the decision to. It is often unusual for both spouses to come to a decision to terminate their marriage at exactly the same time. When however one of you is convinced of the correctness of this decision – or the other one accepts its inevitability –it is not only necessary but also wise to then proceed with the act of having your separation legalized.
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Many couples rush headlong into litigation, each hiring her/his own attorney to advise them on the many options and decisions they face. Conflicts are often escalated as each party endeavours to gain a better deal at the expense of her or his former partner. The couple ends up not to speaking directly with each other, but only through their respective attorneys.
There are many advantages of mediating your divorce rather than going the more expensive routes of litigation.
Collaborative divorce also requires two different attorneys, but they will meet with you and your spouse together and will help you to work out an agreement; often this is not less expensive than a fully litigated divorce. And if the “collaborative” process doesn’t work and the divorcing couple chooses to litigate, they must then hire a different set of attorneys.
Mediation is a collaborative process of co-operation in which the spouses will work with the assistance of a neutral third party to reach an agreement on all the issues. This may include child custody, parenting schedules, equitable distribution of assets, spousal maintenance, child support, and others. (This is not about court-ordered mediation, but rather a process into which both spouses enter freely and voluntarily.)
The mediator will have completed comprehensive family and divorce mediation training (including a domestic violence component)
When comparing divorce mediation with the traditional litigated divorce process, it is:
• Less expensive. The mediated divorce is estimated to be less than half the cost and sometimes even less.
• Emotionally less taxing. Instead of working against each other the spouses will be working willingly toward an agreement that is fair to both. This will reduce the lasting anger and resentment that is usually associated with the win-lose litigation process. It further upholds the individuals’ ability to work together in the future as parenting partners.
• Less time-consuming. A typically mediated divorce can be accomplished in three to seven weeks, versus many months or even years in litigation.
• More dignified. Mediation tends to protect the dignity and self-esteem the parties. Rather than looking to allocate blame, mediation makes it possible to begin a new life in full control of the outcome.
Most lawyers have very little with the non-conflicting approach used in mediation. Some lawyers disapprove of mediation, saying that divorcing spouses should only negotiate through lawyers. But attitudes are changing slowly, even some divorce lawyers are becoming more aware the benefits of mediation for their clients.
We wish to urge any aspiring divorcee to find a lawyer who is “mediation-friendly”
At the end of a mediation process, each partner will have a complete Memorandum of Understanding ready to be handed over to and filed by the “mediation-friendly” attorneys of your choosing. This will eventually be filed with the court and be as binding as any other divorce order. However, mediated settlements tend to have a higher compliance rate because both parties have designed the agreement.
The biggest reason for the success of mediation is that you are able to build your own agreement with the help of a trained professional.
Neither collaborative divorce nor mediation is appropriate if there is a history of domestic violence. In that case, the court and the isolating effect of opposing counsels can offer a more protective environment.