Unfortunately, mediation is still not as well-understood as it should be, and many people still believe that the only way to resolve their legal issues is to hire the toughest lawyer in town. That’s unfortunate, because spending tens of thousands of dollars in legal fees is not only unaffordable for most people – it’s completely unnecessary in the vast majority of cases. Read on to learn more about the myths and realities of mediation!
Myth: A mediator might force us into making final legal decisions about our children’s futures and our financial settlement.
Reality: Mediators cannot, and never should, force their clients into anything at all. A mediator should function as a neutral, impartial third party with subject-matter expertise and advanced conflict resolution skills. While a skilled mediator will guide the parties toward a fair resolution of their legal issues, the ultimate responsibility for decision-making rests with the clients.
Myth: You help people reconcile, right? I heard that mediation is the same thing as couples counseling.
Reality: No, and no! This is a very common misconception, but this myth is absolutely false! In couples counseling, the goal is to work on the relationship so that the couple can stay together. In mediation, the goal is to bring closure to a separation by finalizing an agreement on issues like parenting, support, and property division.
Myth: Mediation wouldn’t work for us because we already have lawyers and have already been to Court.
Reality: Mediation can work at any stage of the proceedings. While many separating couples do choose mediation as a first step, others choose to work with a mediator because they have grown dissatisfied with (or can no longer afford) the legal/court system, and are looking for an alternative process which they feel may better meet their needs and bring them closure more quickly. Many of our clients have come to us after many years in the “system” and have had great success resolving their issues – their only regret is not coming in sooner!
Myth: Mediation only works for “amicable” ex-couples. Our level of conflict is so high that it would be impossible to resolve our issues in mediation.
Reality: We have helped many high-conflict couples succeed in resolving their legal issues in mediation! A few have even been in the system for years, and have been weeks away from trial. As long as both spouses want the conflict to end, feel fed up with court, feel safe in the mediation process, are prepared to make full financial disclosure, and are open, in theory, to the idea of making an agreement with terms within the realm of what is legally reasonable, mediation can be a very effective process for any separating couple.
Unfortunately, the court system fans the flames of conflict, so in these situations it is necessary to work very hard in mediation to undo some of the negative patterns that have become entrenched, but it can be done to a reasonable degree. In these situations, trust and friendship may not be realistic goals, but it is possible, with hard work, to create a workable, businesslike, tolerable “new reality” for the sake of the kids. Even the highest-conflict exes can usually agree on not wanting to ruin the kids’ childhoods, and on wanting to avoid a trial!
That’s it for now, but we’ll be back soon with our second instalment of Mediation Myths and Realities, to answer questions such as: Can things you say in mediation be used against you in Court? Does choosing mediation mean that you can’t use lawyers? If my situation is amicable, can I simply negotiate my own separation agreement rather than use a mediator?
In the meantime, if you’d like more information about our process, contact us and we’ll be happy to discuss whether mediation could work for you.
For separating or divorcing couples, it’s a sad but true fact of life that post-separation conflict can, if left unchecked, quickly spiral into an out-of-control litigation war. But even in cases of difficult conflict, it doesn’t have to be this way.
What many people fail to realize is that in most cases, litigation wars are driven by external factors that have nothing to do with the legal issues in dispute. It’s the anger, fear, desire for vindication, and yes, sometimes even hatred, that colour people’s emotions and prevent them from considering that there may be a better way. Too many people focus on their former spouse’s perceived bad behaviour or poor character, rather than focusing on what the legal issues are and how to resolve them.
But if your sole focus is on “winning” your court case, rather than trying to understand the dynamic behind the conflict, you’ll end up going in circles and wasting your time and money.
The sobering truth is that there is no legal process that can repair a former spouse’s character or heal the pain a former spouse may have caused by cheating or being a less-than-responsible parent. And court rarely, if ever, provides the emotional satisfaction or vindication that litigants are hoping for – it may provide a fair legal outcome, but that’s about it. And at what cost?
Mediation can be a better way because it focuses on negotiating a fair outcome, rather than on “winning.” A good mediator will help clients separate the person from the problem, and focus on interests rather than positions. By treating each party with respect, giving them gentle reality checks where necessary, and helping them have a constructive, goal-oriented conversation about what constitutes a fair legal outcome, a good mediator will help people resolve their conflict, not compound it.
Often, we’ll hear a client claim that their former spouse enjoys or even loves litigation. However, that’s rarely the case. Very few people want to squander tens of thousands of dollars on lawyers or spend years of their lives embroiled in stressful proceedings that harm the kids. The truth is that most people who are stuck in difficult conflict are stuck because they are trapped in their own narratives and don’t stop to consider that they may have other options besides continuing the fight they’ve become so entrenched in.
By way of example, we recently resolved a case for clients who had been in litigation for two years and who had each spent over $100,000.00 on legal fees. It took a grand total of six hours to reach a final settlement. Their lawyers attended mediation with them and signed off on the final settlement, and at long last these individuals were free to move on with their lives. They were beyond grateful, but also expressed regret that they hadn’t attempted mediation two years earlier. One thing they both agreed on was that they had achieved little of value for all of the money they had spent on the legal process.
At RDK Divorce Group, a big part of our work is to help clients identify the factors and emotions which may be getting them “stuck” (and some are way more stuck than others) so that they can resolve the legal issues, put the past behind them, and throw their energies into resolving their issues so that their family can achieve closure, move on, and start the important process of healing from the pain of separation and divorce .
With over forty years of collective experience, we know what we’re doing. No matter how emotionally and/or financially complex our clients’ situations may be, where there’s a will on the clients’ part, we will find a way to get it done.
If you feel that mediation could be right for you, contact us to learn more about our process and how we can help. We’d love to hear from you.