It can be a very valuable exercise at the beginning of divorce for the divorcing couple to envision what they want things to look like in the end. The same is true for divorce professionals working with these couples to also carry what they would like things to look like for the couple at the conclusion of the work. A lot of the New Year’s resolution work I do focuses on what I want my life to look like at the end of the year, in five years, etc. Carrying a shared vision into the divorce process is a great way to help make it happen. When I was litigating I always took a moment before I went into the Courtroom to place my intention that whatever was to soon occur in the Courtroom, that the Judge ultimately make the best decisions for the family that would be impacted, and not necessarily just the client I was advocating for. Win, lose or draw, I was okay with the outcome if I felt the Judge ultimately made the right call for the family. Now that I am exclusively mediating divorces, the couple I am working with and I no longer need to cede control over the outcome to the Judge, and in the end the couple has the ability to fashion exactly what they want the divorce to look like. This leads us back to the power of envisioning at the start what we want in the end. As a divorce professional I have a few standard wishes for each family I work with. If the couple’s wishes and mine align then we are set up to succeed and mediation provides a great process to efficiently, effectively and creatively get there.
So what does this image of the family at the conclusion of the divorce look like for me, the mediator. First, I want the couple to feel like they were in a good spot to make educated decisions and for them to have no regrets about the decision process after the agreement is reached. Second, I want the couple to be comfortable that they have shared all pertinent information and they have both been forthright in providing all information about what they own, owe and what they make. Given these first two items, my third wish is that they walk away feeling like they both have been treated fairly in the outcome. Fourth, if there are children, I want the children and each parent to feel like they have the opportunity to maintain and grow their relationships with one another. My fifth and final wish is that each spouse is okay financially and emotionally as they move forward with life after their divorce. These five things are why I believe divorce mediation should be the first choice for all divorcing couples. It provides the greatest option for success in accomplishing these five outcomes. If each spouse shares this vision and is working with a professional that does the same, great things can follow.
I think everyone can agree upon the importance of the first two items. Litigation provides for making educated decisions by each spouse getting legal advice (education) from their own attorney. In mediation the mediator does not give legal advice, but provides the couple with very detailed information about the applicable law so that the couple can ascertain their legal rights and responsibilities. In mediation the couple is getting that education together and there is immediate focus in the process on getting all that information on the table early. A good mediator assures that both spouses have the information they need so they can confidently make the decisions that must be made. Litigation also provides for exchanging and disclosing all pertinent information. Every case requires a certification of full disclosure before the Court will grant a final divorce. Sometimes formal discovery tools are needed to gather all the necessary information that can be expensive and time consuming. In mediation, there is agreement at the beginning that the couple will open the books and provide all pertinent information so that again there can be quick and efficient exchange of documents to instill confidence that both spouses have been forthcoming in their disclosure. If there is not sufficient trust in the disclosure, the couple may not be well served in mediation. If this is a challenge, the mediator will try to find a way to alleviate any doubt by exploring if there are additional documents to gather to put any concerns to rest. The couple works as a team with the guidance of the mediator to assure the couple is fully educated and armed with a thorough disclosure exchange. Education and disclosure are present in litigation and mediation, but mediation provides a much more streamlined process to completing these two steps.
The next three outcomes are common goals in mediation, and more rare in litigation. Litigating a divorce usually pits the goals of one spouse against those of the other, and is not a cooperative journey to a mutually agreed upon resolution. There is not usually an open conversation about accomplishing something that feels fair to both, preserves and promotes the well being of each parent-child relationship, and seeks to make both spouses okay in life after the divorce. It is possible for each party to hire their own attorney and have everyone work together outside mediation to accomplish a fair, healthy and mutually supportive outcome, it is just a lot less likely. Mediation requires agreement between the spouses so if both are committed to and expecting these outcomes then the process will be directed to accomplishing that end. My easiest and most fulfilling work is helping couples who are united with these aims. My most challenging work in mediation is working with couples who are trying to get one up on the other spouse, do not value the other spouse’s relationship with the children, are not committed to a process that seeks to accomplish a sense of fairness for both spouses, and has no interest in a conversation about making sure both are going to be okay moving to life after the divorce. Those mindsets are perhaps better suited for using the Courts instead of mediation.
I do not expect each couple I work with to hold the same vision that I do. Each divorcing couple has whatever history that led them and their relationship to the state it is in at the onset of the divorce process. Sometimes that gets in the way of being able to wish the best for and fairness to each other. I have settled on “A Healthy Divorce” as my practice name because I want to attract couples committed to divorcing in a mutually beneficial way. Envisioning a process and outcome that accomplishes educated decisions, full disclosure, healthy ongoing child relationships, mutual fairness and everyone being okay as they move on is a noble pursuit. If you and your spouse can get on that same page, then divorce mediation with a professional who strives for that same outcome is the process for you. Whatever you do, take some time before you dive in to envision just what you want the outcome to look like so you can choose the best path to get there.