When seemingly irreconcilable differences arise in a marriage, sometimes the only option that seems possible is the choice with the most finality – litigating the issues through the courts. However, early mediation can produce agreements over division of property and liabilities, support, and parenting arrangements with less rancor and expense than litigation often involves. Early mediation also tends to produce results more tailored to the specific circumstances of the parties.
About the Early Mediation Process
Early mediation is mediation that the parties engage in as an alternative to litigation, and usually begins early in the case, maybe even before the divorce action has been filed with the courts. This is distinguished from a different form of mediation, the Settlement Conference, which is something that takes place late in the litigation process, where the role of the mediator is primarily to evaluate the trial positions of both parties and bring them to a resolution based on what is likely to happen at trial.
The role of the mediator in early mediation is to help a couple reach agreements they may not be able to come to on their own. The mediator helps to guide the conversation between the parties, helping them ensure they have sufficient information to make intelligent decisions, keeping the discussion on topic, and helping the couple keep moving when they get stuck. “Stuck” often happens when the parties develop positions that are in direct contradiction of the other’s. Mediators have several tools the use to help couples get past “stuck”.
The parties will often meet with the mediator several times as they work through information gathering, developing options, and negotiating agreements. The parties may choose not to focus on how a court would rule on their issues, but rather what best suits their goals and interests.
Having a mediator does not, however, replace the need to have attorneys in the background. A mediator is NOT the attorney for the parties and as such cannot offer them legal advice or prepare the legal documents they will need to complete their divorce. The parties may choose not to have their attorneys attend the mediation sessions, but they will need them for legal advice and document preparation.
When Early Mediation May Not Be Appropriate
Early mediation requires both parties being willing to work together cooperatively, even though they may have differences of opinion about the outcomes they wish to see. If there is a history of physical or verbal abuse, the ability to work together cooperatively may be missing, especially if the abusive spouse is unwilling to acknowledge the history of abuse. Both parties need to work together in a calm, non-threatening environment in order for mediation to be successful.
An initial interview with both parties is recommended so the mediator may observe and look for any signs of a threat or imbalance of power in the relationship, as well as discuss the process for moving forward. If the mediator is unable to create a sense of security and equality in the process, they may recommend litigation.
If a spouse suspects his/her partner of hiding financial assets, suffers from a mental illness, or is otherwise unreasonable or unable to work towards an amicable solution to the problem, mediators have little power and the legal system should be utilized to solve these separation proceedings.
If you and your spouse would like to explore the early mediation option, we can schedule an initial consultation appointment for both of you to meet with one of our mediators. If you are unsure whether mediation, collaboration (a process somewhat similar to mediation but with greater support), or litigation is most appropriate in your situation, you may choose to have a meeting by yourself with one of our attorneys. While we would then likely not be able to act as your mediator, we would be able to recommend mediators outside our office and to act as your attorney in the background as you go through the mediation process.
Whatever option you ultimately choose, it’s important to explore all avenues and find the lowest-impact solution for your family. Contact Seattle Divorce Services today to learn more about your options and to set up an initial consultation.
Image source, labelled for reuse
