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If a divorce involves complex
issues, can you still use a mediator?
A common divorce myth is that a layperson is incapable of understanding the complexities
of a divorce, unable to make his or her own decisions, and should therefore defer to the
attorneys. This attitude is the real basis of the unwarranted advice against mediating
divorces with "complex issues," i.e., those involving substantial income and/or
assets. The truth is the exact opposite.
In mediation, you are the decision-maker. Among
the core principles of divorce mediation are self-determination, informed consent
(decision-making), and self-empowerment. An examination of these principles will help you
understand the advantages of mediating your divorce, the best way to maintain control of
your divorce and your life, both as to process and the ultimate decisions, regardless of
the so-called "complex issues." Also, litigation -- governed by the myriad rules
of court -- is a tremendously rigid process. By contrast, a well-trained, highly
experienced mediator (i.e., one who has done at least several hundred mediations) can
offer you great flexibility and lots of options, putting you in the driver's seat while
maintaining the integrity of the mediation process.
There is no substitute for self-determination -- for you
deciding how to resolve the issues unique to your divorce. Those decisions, like most
important life decisions, are invariably based on imperfect information and don't have
"right" answers. You should make the decisions based on your own priorities. If
you allow your lawyer to be the decision-maker, since he is a human being, he will
inevitably be influenced by his own priorities, like billable hours, protecting himself
against malpractice claims, and his preconceived notions about the "right way"
to handle a divorce case. You may make mistakes, but so might your lawyer, and at least
they will be your own mistakes from which you can learn rather than just being a victim.
The mediation process allows you to become informed about your options including, when
necessary, relying on the advice of the same types of professionals used in litigated
divorces (a lawyer, a forensic accountant, a child psychologist, etc.).
When I served on the Divorce Law Study Commission, the
most common complaint I heard was about the debilitating sense of being "out of
control" during the divorce. The self-empowerment focus of mediation is crucial to
putting you in the driver's seat. Taking control of your divorce, and making your own
decisions is part and parcel of taking control of your life. Divorces are all about people
embarking on a new life. Your decisions concerning the process you use, and how you go
through the divorce, are creating a template for you for how you will lead your life after
the divorce. |
