Mediation is a means of developing workable arrangements for you, your spouse, and your children in a non-adversarial setting that takes into consideration the needs of the whole family. Couples coming to mediation are usually experiencing anxiety and stress, which cover other feelings including anger, resentment, rejection, disappointment, helplessness, and a sense of loss. The need most commonly associated with these feelings is for support, often expressed as "wanting somebody on my side." The greater a person's feelings of helplessness, the more that person feels he or she must have a strong ally.

      It is not surprising, then, that lawyers are often perceived as the logical choice for fulfilling this need, and lawyers themselves often support this notion. When a party decides to fulfill the need for support by employing an attorney advocate, there is usually little or no awareness of how this may become the first move in an escalating competitive struggle between the parties that can become devastating both financially and emotionally. It is also a process in which each party denies his or her role in the destructive escalation, contending that the other party or the opposing attorney was responsible.

      Most couples wish to avoid a destructive, competitive struggle, but our culture supports the idea that in these situations one party will win and the other lose. Thus each party becomes committed to "winning" in the belief that she or he is destined to either be a "winner" or a "loser." The same idea suggests that whatever one party receives is his or her gain and the other party's loss. The traditional legal process is automatically looked to as a means of "protecting" oneself against the losing and putting oneself in the position of being able to gain the maximum possible. The importance of maintaining a cooperative working relationship, even when there are children, is forgotten.

      Divorce mediation offers a quite different approach to resolving conflicts between the parties. It asserts that, even though the parties have decided that they can no longer continue living together as husband and wife, they believe:

1. Each is entitled to full respect as a person.
2. Neither party has an investment in "winning" over the other in terms of money, property, or other conditions or the settlement.
3. Each party is interested in surviving through having his or her own needs met to the extent permitted by available resources, and each is equally interested in seeing that the other party's needs are also met. (An agreement that does not address the needs of both parties is less likely to be honored than one that does. In fact, competitively reached settlement agreements have a very poor record for performance.)
4. Difficult as it may be to acknowledge, there is still caring between the parties, even though it may not be of the kind that would support a marital relationship. It is especially important that both parties acknowledge this fact when they will continue to provide parenting for their children, even though they will no longer be married to each other.

     Parties considering mediation as a means of reaching settlement are sometimes fearful about having to make decisions about financial matters in which he or she has had little or no previous experience. It is part of the role of the mediator to provide the general information needed to make such decisions and to help the couple explore all the legal and financial issues, options, and consequences. When necessary, the advice of other experts such as accountants, appraisers, and actuaries will be sought. Parties may also seek the advice of attorneys during the process.

      It is important that both parties recognize that divorce can often result in a reduction in lifestyle. At the Family Mediation Center we make every effort to divide assets with the minimum amount of financial disruption and to put both parties in the best possible financial position in order to achieve for each party the maximum lifestyle that the available assets will allow.

      Sometimes one party may want the divorce more than the other. It is understandable that the party who least wants the divorce is likely to feel cheated both emotionally and financially. The reluctant party may mistakenly believe that consent of both parties is necessary to achieve divorce and that, by withholding agreement to divorce, she or he can prevent the divorce or gain leverage in the negotiations. Rational as it might seem to require the consent of both parties, the law does not require mutual consent; nor does the law allow fault of either party to be considered by the court or have any bearing on the division of property. Once the parties understand that if one of the spouse's wants the divorce, the divorce will happen, then they are in a better position to consider the four issues that must be resolved:

1. Division of marital property
2. Spousal support
3. Child support
4. Parenting arrangements

     "What are my legal rights?" The law does not provide a clear answer to this question. In general, the settlement must simply be fair. A fair division of community property in Arizona is an equitable division, which is defined in case law as that which is "substantially equal." The philosophy of the Family Mediation Center is that there is no such generalized "fair" divorce, only individual "fitting" divorces that consider the unique features of the parties, their resources and values.

      "If the mediator is a lawyer, will she or he give me legal advice?" Even though the mediator may be an attorney, the Canons of Ethics under which attorneys practice do not permit an attorney to represent more than one party when there is a conflict. The mediator's concern is for the couple and the family. She or he is dedicated to the pursuit of a fair and equitable agreement for BOTH parties. To that end, the mediator/lawyer can provide general legal information, may give the parties a sense of the legal arguments that may be used for both sides of an issue, and may inform the parties of the range of possible outcomes. What is important to remember is that the mediator is trained to facilitate cooperative negotiations between the parties, while attorneys, from their training as advocates, are accustomed to the use of competitive bargaining tactics.

      "Do I still need an attorney?" Attorneys may be employed in a variety of ways in conjunction with the mediation process. Attorneys may be consulted during the process or upon completion of the process, whatever is most appropriate for the couple. At a minimum, couples are encouraged to have the agreement reached in mediation reviewed by independent counsel.

      Good legal advice can be very helpful to the mediation process. Many parties come to mediation already represented. Some have invested heavily in the adversarial process without much success. In his or her role as an impartial facilitator, the mediator is the only person who can talk to both parties and both attorneys. This serves to keep the communication open and to avoid misunderstandings that might otherwise result in escalation of conflict.

      "What is the result of the mediation process?" The agreement that is reached during mediation is written up by the mediator. There are three ways in which the agreement can get entered in the court and become final:

1. The mediator may draft a Memorandum of Understanding, which is not legally binding. The couple will then choose whose attorney will prepare the legally-binding agreement based upon the Memorandum and the other party is encouraged to have the legal agreement reviewed by independent counsel on his or her behalf.
2. Some couples will choose to file the legal papers themselves or use a document preparation service.
3. Upon the request of both parties, the mediator/attorney at Family Mediation Center can draft all of the legal documents.

     When doing so, however, the mediator/attorney will usually insist that each party has the legal agreements reviewed by independent counsel. This protects everyone involved and avoids any confusion over the role of the mediator/attorney.

      "How does the cost of a mediated settlement plus divorce compare with employing two attorneys and going through the traditional legal system?" An exact calculation of costs in either system is simply not possible because no one can predict in advance how much time will be required and what difficulties will be experienced by the parties in reaching settlement. However, most of the time charged by the mediator will reflect the time actually spent with the parties. In the adversarial process, much of the time charged is for negotiating outside of the presence of the parties. It has been our experience that this fact, in combination with the danger of escalation of issues that is inherent in the adversarial process, increases, in general, the costs and delay of an adversarial divorce over that of a mediated divorce.

      Financial costs, however, are not the only consideration. Divorce claims both an emotional and financial toll, but the costs to the parties and the family following the divorce can be even more significant. Research indicates that the post-divorce relationship of the couple and family for mediated couples is significantly better than for couples who have been divorced through the traditional legal system. Mediation sets the stage for better parenting and better adjustment after divorce on the part of both children and spouses.

      "What about the children?" Children are a major concern at the Family Mediation Center. A child psychologist may be used in conjunction with the mediator to help parents design a child care plan that will best meet the needs of the parents and children. Children, with the approval of the parents, are sometimes brought into the Family Mediation Center for a visit with the mediator and/or psychologist. This may help the children cope with their own fears, increase the parents awareness as to how they can best assist their children through the transition, and help the parents design the best child care plan for all concerned.

      The Family Mediation Center is here to help you and your family through a difficult period in the most constructive way possible. The only requirements for success in mediation are that both parties have the desire to cooperate, are willing to participate fully in the process, and wish to achieve an agreement. In mediation, you are in the driver's seat of your divorce. We urge you to take advantage of our one-half hour courtesy session in order to explore this alternative further.