Article by Patricia Barrett, CFP CDFA Mediator
With the advent in1969 of the “no fault” divorce laws in Texas the divorce process entered a new era. One spouse no longer had to be “at fault” to get a divorce. The process remained pretty rigid because just about the only recourse for couples wishing to get divorced was to each retain a lawyer to “do battle” for them. This system is still alive and well today and can be very, very expensive. Thus was born the need and desirability of mediation or negotiating a settlement for divorcing individuals.
Dictionary.com defines the term "mediation" this way:
To settle (disputes, strikes, etc.) as an intermediary between parties; reconcile.
To bring about (an agreement, accord, truce, peace, etc.) as an intermediary between parties by compromise, reconciliation, removal of misunderstanding, etc.
A good mediator for divorce assists the couple by lowering the amount of emotion and angst involved in the negotiating process and thereby helping to nurture a mutual respect and agreement without going to court. The process is designed to help a couple work out their problems, disagreements, and marital issues with a minimum of bickering because it is being structured by a trained, impartial third party.
There are different methods that can be used, but generally the mediator meets with the couple in separate rooms carrying each offer and counter offer between the two sides; while making suggestions as to how they might resolve impasses. While a judge in a courtroom or an arbitrator conducting a “binding arbitration” can impose their rulings on the opposing sides, the mediator has no power to impose a solution. There are no formal rules or procedures to control the proceedings; the dealings are informal and the parties mutually agree on ways to proceed. The solution is up to the opposing parties, with the professionals help, to work toward their own unique agreement.
A divorcing couple might mediate to work out a combination of a mutually agreeable child custody agreement, or divide their community property albeit businesses, retirement assets, pensions, savings, or furniture. A well structured settlement with a minimum of acrimony is good for everyone and especially children.
Mediation can be particularly useful in belligerent situations because it is designed to identify and cope with divisive interpersonal issues. Courts, for example, deal with only issues. The court declares one side a winner and the other a loser on each issue, it may (and usually does) worsen long-term tensions between the opposing parties. In the negotiated settlement each side will be invited to present all issues in dispute and because the system is designed to look at and fix the bigger picture, the whole picture, it's a far better way to reduce relative long-term tensions while going to court generally produces the opposite result. Couples can avoid divorce court, the overworked judicial system and the motivations of the players playing for one-upmanship and their own personal gain. This does not make for as good an outcome as can be had with a well negotiated, friendlier settlement.