What is Divorce Mediation?

Everyone knows what divorce is. So the real question is, what is mediation?

Simply put, it is a form of dispute resolution that uses a neutral mediator rather than a judge or arbitrator. It is based on the principle that divorcing people have the right and the ability to resolve issues themselves

What does a Mediator Do?

The mediator's job is to structure and guide the negotiations, explain relevant principles of divorce law, and to help the divorcing couple change the way they think about their divorce, about each other, and about themselves.

Mediation is non-adversarial.

Litigation is adversarial by design because it anticipates that someone else will decide the issues for the divorcing couple. Mediation is non-adversarial because the parties decide the issues. They do not have to convince the mediator that one side is right and the other side is wrong as they do in litigation. And because the process is non-adversarial by design, the parties stop seeing each other as adversaries where one has to win and one has to lose. They learn to redefine needs and goals that are not adverse, and then work together to find solutions that meet those needs.

Look at the following example of adverse demands redefined as deeper, long-term goals. Both parties to a divorce want to keep and live in the marital home. Their immediate and adverse positions would appear to be irreconcilable. After a divorce, they can't both live in the same house. Three solutions come to mind: Husband lives in the house and wife moves out. Wife lives in the house and husband moves out. They sell the house and both move out.

The first two solutions will make one spouse happy and one spouse unhappy. The third will make both of them unhappy. But if they can define interests and needs that are not adverse, and that are more important to them than keeping a particular house, they may be able to find a solution that makes them both happy. If the only goal for both spouses is to keep the house, there is no solution that will satisfy both of them. But most people have deeper needs that are mutual or at least not adverse. These needs can include financial security, self-respect, preservation of relationships, contact with the past or with important memories, freedom from fear and loneliness, a fresh start, or well being of children. If these kinds of goals can be articulated, a whole range of possible solutions opens up. Let's say both spouses realize that their children will be better off remaining in the family home, with the parent who travels less on business and has been the primary caregiver. This mutual concern for their children can help them reach an agreement that the primary caregiver spouse will retain and live in the family home, despite the ardent desire of the other spouse to stay in the home.


Why is Divorce Mediation so Important?

Divorce mediation is important because the alternative can often be so bad. The American divorce litigation system often ruins lives, bankrupts families and scars children for life. The reasons why the litigation system works so badly for so many people are not hard to see if you understand how the system is set up.

As noted above, litigation is adversarial. It is the process of preparing a case to be tried by a court. On every issue, one of you will win and one of you will lose. This win/lose, zero sum approach to divorce is the essence of litigation.

Settlement is reached as each of you slowly and often reluctantly back down from your initial demands. So even if the settlement you eventually reach is fair, both of you are likely to feel you lost because you had to give up so much from your original positions.

Mediation is fundamentally different. In mediation, there is no trial looming on the horizon. You don't establish demands or positions that you have to bargain down from. Since the goal is to find mutually beneficial solutions to non-adverse interests, you have much greater freedom to find novel and creative solutions that best meet your needs. The adversarial principles that one of you will win and the other will lose, or that the more one of you gets the less the other gets is replaced with the idea that the best settlement is one that maximizes the gain for both of you.

New Jersey Courts Endorse Mediation.  The New Jersey court system believes so strongly in mediation that it requires attorneys to talk to their divorce clients about the availability of mediation and to give them literature about the process. Out of concern that attorneys were not doing this, the New Jersey Court Rules were recently amended so that divorce clients now have to sign a certification stating that their attorneys told them about mediation and gave them literature about the process. The certification has to be attached to the Complaint and Answer for Divorce.