Ten Tips To Ease Your Divorce: Mediate, Don’t Litigate

Submitted by Divorce Mediator John Ford

Divorce is an ongoing reality in our society. No longer the exception, at least one in every two marriages will end through a divorce. And yet, despite this fact, we have been slow to adapt procedures that allow a marriage to end civilly, creatively, fairly and in these tough economic times, with the minimum of expense. For the most part, divorce is still framed as an adversarial battle that is characterized by accusations, blame, unproductive argument, high costs, and weak solutions that ignore the best interests of the children.

This failure to adapt reminds one of the silver backed gorillas in the forests of Africa. In the days prior to the arrival of the gun, standing on your back legs and beating your chest was an effective strategy to ward off a threat. Now, it makes an easy target for a hunter with a gun.

And so it is with divorce. There are plenty of attorneys waiting for you to show up angry, indignant, hurt, and vengeful. They are happy to be your silver backed gorilla, standing up to make futile motions to court, beating their chest, but only as long as there is money in the estate. The number of divorce cases that start out with an attorney, but end without is an embarrassment. The number one reason-there was no more money!

It doesn’t have to be this way.  In truth, we have already evolved better ways to end a marriage, ways that are kinder, gentler, and when there are children involved, to deal with the reality that what is actually taking place is a reorganization of the family, rather than an ending.

And that way is mediation. Instead of the parties setting themselves up for a fight, more and more are turning to mediation. In mediation, a professional expert supports a conversation that is intended to facilitate what needs to happen-make decisions based on the family needs that are better than the decision that a disinterested third party aka a judge would make.

Divorcing couples are finding that this approach makes good common sense, and is far more conducive to finding the best possible, most creative and certainly fairest solution to their family reorganization, at a fraction of the cost. They are discovering that they don’t have to be held hostage by a process that only makes sense to the attorney’s representing them.

And it’s about time. The average mediation costs $4,000. By contrast a divorce that is negotiated with adversarial attorney’s involved costs $26,000, and when it goes to trial the cost is $78,000. For most American families that is unaffordable.

So the first adaptation is to mediate, not litigate. But what other adaptive strategies are available that you as the divorcing couple can do to make the mediation process itself, more effective? What follows is a list of ten ideas that are worth considering as you seek to have the most positive divorce experience possible:

1. Seek to collaborate, not to fight

The research from the field of negotiation is clear. We get better deals when we seek to work jointly at the challenge on hand, both in regard to those issues where the best interests of the children are at stake, but also when it’s all about the money.

2. Keep your eye on the ball

As Stephen Covey says, start with the end in mind. The purpose of the process is not to exact revenge, but rather to work out a fair solution that makes sense for your family. The end product is your marital settlement agreement. It documents your plan of action for your ongoing care of your children, the division of your estate, and also addresses whether and to what extent there will be any spousal support.  It is this document that allows the court to essentially rubber stamp your process.

3. Prepare!

Getting a divorce takes an effort. You will have homework to do!  Both parties must make full disclosure of all assets and liabilities. Only you have the information. The sooner you share it the quicker the process will be.

4. Manage your Emotions Wisely!

Not only is it important to have your financial information organized, but also that you take time to manage your feelings. Inevitably, divorces surface strong emotions, like anger, disappointment, shame, fear and jealousy to name a few. There will be opportunities to share how you feel during the mediation, in productive manner. If you can dissipate your negative emotional energy before the meetings it will help.

5. Listen To Understand

As hard as it may be to listen attentively to what your partner is saying, it will pay dividends. You will have the benefit of understanding where they are coming from and what is important to them. Too often we can only hear the voices in our own head and tune the other out.  Mediation works best when both parties communicate effectively, and listening is a vital part of that.

6. Focus on your needs

In conflict it is natural to identify a solution that we feel is fair and to demand its application. The danger with this approach is that it fosters defensiveness and conflict escalation. The mediation process works best when we articulate and focus on our needs, and then together search for the most creative solution with the resources available.

7. Explore Standards of Fairness

The law is one standard. If you don’t work things out and still want to divorce, a judge will apply the law to the facts of your case. How you feel or what your personal standards of fairness look like, will not come into play. However, in mediation, you can establish your own criteria for fairness, and use those family inspired yardsticks to address the more tricky issues that leave you feeling hopeless.

8. Consider the need to apologize

When your kids throws a ball through your neighbors window you don’t tell them to run inside and hide. You send them over to apologize and to make reparations. When our actions cause pain to another, the right thing to do is to say you are sorry. When we are conciliatory with one another in this manner, we set the stage for reconciliation, a vital outcome for the ongoing, but reorganized family.

9. Consider Forgiveness

Forgiveness is something we do for ourselves. It empowers us to move on with our lives without challenging the past to be anything other than the way it was. To forgive does not mean we condone, but it does signal an intention to let go of the pain.

10. Be Creative

As humans facing a challenge, we are limited by our own creativity. Like the poor silver back gorilla’s that needed to find a new strategy, your challenge is to think outside the box and find a unique solution that addresses the reality of a reorganized family.

Mediation is a family friendly process that allows you to focus on what you need to do to make your divorce a reality. It represents a new way of doing things. A way that most agree is good common sense. Following the suggestions contained in this brief article will help you get through your divorce with the least pain possible and with the greatest potential for marital settlement agreement that is fair to both.

John Ford practiced family and labor law in South Africa and Namibia before moving to the United States in 1996. He mediates divorces with Liaise Divorce Solutions in downtown San Francisco. John has written extensively on the subject of conflict resolution and mediation and is the editor of www.mediate.com.  He can be reached at  john@liaisesolutions.com

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    Great article on acting like a divorce mediator. Your tips were very helpful. If people followed these guidelines prior, they would be less likely to consider divorce in the first place.

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