Mediation is a word people usually are not familiar with unless they are going through a divorce. Even when you hear the word mediation, it can sound confusing, complicated and even scary—especially if you hear myths about mediation that are simply just false.
The truth is, mediation is the exact opposite of confusing, complicated and scary. With the right mediator and an open mind, mediation can end up being an experience that leaves you feeling empowered, calm, and confident for a wonderful post-divorce future.
To learn more about mediation and to determine if it’s right for you and your soon-to-be ex, here are some truths and myths about mediation.
Here are 12 Truths and Myths about mediation:
1. Mediation works for all families regardless of their level of conflict – TRUTH.
There is a misconception that mediation can only be successful for parties with low conflict. This is a myth. We, as mediators are a neutral third party who will help guide you to move beyond an adversarial position. So, even if you feel you are a high conflict couple, we can help.
2. Mediation is more cost effective. TRUTH
When couples litigate, each spouse is paying their divorce attorney an hourly rate. Court appearances are infrequent, which can make the divorce process go on for months—even years. Meanwhile, both parties are paying their attorneys hourly and most likely receiving monthly bills that can get into the thousands, tens of thousands or even hundreds of thousands. Mediation provides the opportunity to resolve conflicts efficiently, equitably and cost effectively. Having the parties work with one professional verses with two litigious attorneys provides significant cost savings, and the process generally takes less time.
3. Mediators make the decisions for parties – MYTH
One of the biggest myths about mediation is that mediators make decisions for the parties. This is not true. Both parties control the divorcing process. Both parties’ needs and interests are addressed, and decisions reached in mediation are made by the individual participants, not by a judge or third party. As a neutral third party, the mediator addresses each party’s needs and interests and helps guide them to a resolution they feel is equitable.
4. If a judge will allow me to plead my case, I will get a better settlement. – MYTH.
Another one of the myths of mediation is that people getting divorced think if they litigate, they will have a chance to present their case to a judge. In most cases, a party will not have the opportunity to plead their case directly to a Judge.
5. Mediation works for both parenting and financial issues – TRUTH
In my practice, we begin the mediation process by developing a parenting agreement. Once that is completed, we work through the financial issues. These are the two core pieces of a divorce settlement. Once these are agreed upon by both parties, we mediate any other issues. Sometimes the settlements will change with these other issues, but only if both parties agree.
6. Mediation is more successful without legal counsel and couples can use the same attorney – MYTH
As a neutral, the mediator does not provide legal counsel. Therefore, it is always wise for each party to retain their own attorney. This way, each party can consult on the agreements reached in mediation, and not only receive legal advice, but feel better about the mediation agreements knowing the attorney agrees that they are fair and equitable. Attorney-assisted mediation is often helpful and necessary in moving the parties forward and getting to agreements in a more timely manner.
7. Mediation provides the parties the opportunity to be creative. — TRUTH
Every divorce case and every divorce settlement agreement is unique. What mediation provides (that divorce litigation does not) is the opportunity to create a a complete settlement agreement that work best for everyone in the family. A parenting plan that works for you and your soon-to-be ex that might be perfect for you, may not work for someone else’s family. Factors include the age of the children, parents’ work schedules the emotional health of the children and the financial needs of the children and the parties.
8. If I did not mediate my divorce, I cannot mediate a post-decree issue — MYTH
Mediation is a wonderful process for couples who are already divorced, but have new issues that need to be agreed upon. Life is constantly changing, which in turn leads to changes needed in marital settlement agreements. Changes can include job changes, a change in financial status, remarriage, and kids’ emotional health.
9. Patience is a virtue in mediation – TRUTH
Mediation can feel frustrating, disappointing and even infuriating, at times. Being a mediator for 20+ years, I can tell you that if you try to be patient and trust the process, it will be successful for you.
10. Parties do not have to enter the mediation process with the same timing — TRUTH
Oftentimes, one party may be more prepared mentally to move forward and settle the divorce, while the other party just isn’t there yet. Mediation works even if both parties do not begin the process in the same mental space. We find that eventually, when the other party decides he/she is ready, the process goes relatively quickly.
11. Mediation provides an opportunity for parents to end their marriage and begin a different kind of partnership — TRUTH
Agreements that couples reach in mediation (versus what a judge decides in a litigated divorce) tend to stand the test of time because they have been agreed to by both parties. In other words, both parties understand the decisions that they came to together, with the help of the mediator. No one feels like they are being forced to do anything. Furthermore, parents learn to better communicate and become better co-parents as a result of what they learned through the mediation process.
12. If I do mediation, I never have to go to court. — MYTH
This is not true. After the parties reach a marital settlement agreement (which includes a parenting plan), they have to appear before a judge with their divorce attorneys for what’s called a prove-up. This is when the judge approves and signs off on the agreements. That said, it is a one-time, relatively quick appearance, which is not costly.
In closing, I have been a mediator for over 20 years. My passion for mediation is driven by the results I’ve seen in working with hundreds of couples. They walk away feeling empowered and content because they had a role in deciding what their post-divorce life looks like. Their parenting plans are designed to meet the needs of everyone in the family, which benefits the children immensely.
I also find that couples end up being so much more amicable as a result of mediation, which is also tremendously beneficial for the kids. If I can be of assistance, or if you have any more questions about truths and myths of mediation, don’t hesitate to reach out.
Marjorie Jacobs is a certified mediator for the Center for Conflict Resolution (CCR) in their volunteer mediation program as well as an appointed mediator for the Circuit Court of Cook County, Illinois and Lake County, Illinois. She has taken multiple mediation training courses through both the Center for Conflict Resolution and the Mediation Training and Consultation Institute. Marjorie is a member of The Mediation Council of Illinois and the both the Chicago Bar Association and the Illinois Bar Association.
Marjorie is a graduate of Washington University School of Law and Washington University School of Medicine’s Health Administration Program. She received her B.A. from Sophie Newcomb College of Tulane University. Her legal experience includes a corporate health care practice at Katten Muchin and Zavis (Chicago) and Altheimer & Gray (Chicago).
Marjorie also served as Assistant General Counsel and subsequently Director of Strategic Development for the American Hospital Association (AHA). While at the AHA she directed a national task force comprised of ADR experts in health care. Marjorie is the co-author of Managing Conflict In Health Care Organizations and has spoken to numerous audiences on the virtues of developing internal ADR programs.Marjorie serves as a member of the Tulane University School of Liberal Arts Director’s Advisory Council Board.
Memberships and Affiliations:
• The Lilac Tree
• 19th Judicial Circuit Court Family Mediation Program
• Lake County Bar Association
• Mediation Council of Illinois
• North Shore Law (NSLAW)
• Approved Mediator for Lake and Cook Counties
• Certified by the Center for Conflict Resolution (CCR)
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