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DO WE NEED MEDIATION If My Spouse and I Know Exactly What We Want to Do?

Q.  So I am wondering - why would we need mediation if my wife and I already know and are agreed about how to divide our stuff? I am thinking we should have a cheap divorce.

A.  You may not need mediation at all! This is not for us to decide. There are many times when people want to hire a paralegal or perhaps a lawyer, or even a mediator, to act as a scrivener - that is, merely to take down the terms they dictate and turn it into a settlement agreement or stipulated judgment to be filed with the Court. Most mediator offices do prepare all of the divorce paperwork that gets filed.

Since you reference "stuff" I imagine you two don't have children. I think it is really important for people who do have children to consider mediating their breakups, especially when there are even only occasional conflicts over time share, communication styles, or a child support stream or the sharing and reimbursement of any number of kinds of expenses, because even intermittent disputes can deeply affect kids in ways that keep lingering. 

But assuming you don't have children, whether you might consider mediating may depend on a bunch of factors. 
  • How much stuff is there and how long were you married? If you are dividing pots and pans and a small apartment full of furniture, without more, then chances are you don't need a mediation. 
  • If there are no issues of spousal support or child support, or if what you propose to agree on is indeed perfectly adequate and fair to each of you (and you both know that to be so), then mediation might be an unnecessary cost for you.
  • If there are no issues over repayments of loans to parents, no residence to divide or sell, and if the two of you really have no ongoing ties that will bind you together in the future in terms of finances or other people, mediation might not provide an added value to the quality of your divorce.
  • If each partner has been and remains able to talk respectfully towards the other, and to behave with fairness and dignity, mediation might be superfluous.
  • So long as there really are no imbalances of power, such as for instance one party who has decided there is nothing to disagree over and then sets about convincing the other that this is so, then mediation may not be necessary to protect the interests of either party.

But it is our experience that there are usually issues and agendas that lay beneath the surface of what each party voices. Many times the parties have assumed conditioned roles or "conflict patterns" (for instance "accommodation" or "withdrawal" from conflict, something I will separately blog because it is so unconscious and yet so important to understand) that mask or shortcircuit a full and fair resolution of the matters that must be settled in divorce or partnership dissolutions. If those patterns are not honestly looked at and addressed, then someone's interests will likely be damaged no matter how "friendly" or "amicable" the separating is expressed as being.

Mediation is the parties' process, not the mediator's. Just as both partners must be on board to attempt mediation, we believe that both partners ought be on board in believing that it will not assist them assuming they are otherwise willing to consider it. Sometimes one person has not really expressed that they would like to discuss in a safe setting what the agreement that has been reached really means, or inquire whether it is fair or whether there might be a better alternative. 

We are available to assist you whenever you feel that exploring mediation might benefit one or both of you! This is a topic that is appropriately raised at the Orientation meeting, or at any time once the mediation commences.

Thurman W. Arnold III 


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