Many people have told me lately that they regret hiring a lawyer to litigate their divorce. They say they’re tired of the acrimony that comes with litigation. They tell me they’re unhappy with the war-like tactics, confused that they’ve been instructed not to communicate with their soon-to-be-ex and worried that they’ve lost control over the process and outcome. But the worst part is that many of them don’t know that they still have options! No divorcing couple is, or should be, tied to a process that isn’t working for them. It’s never too late to mediate.
I believe that almost all couples should try to mediate their divorce. That’s true even if you’ve already started the litigation process. At any point in your divorce, if you and your partner agree, you are free to shift gears and mediate your way to resolution. Many couples have found that mediation can help break a litigation logjam—and lead to an outcome that helps everyone involved move forward.
One of the most important aspects of mediation is that mediators will meet you where you are in the process. That is: the mediator will work toward whatever goals you and your partner are pursuing at that moment, whether a global settlement or resolving particular issues. For example, a mediator can work with you to address specific issues like custody. Since custody issues include both parenting time (that is, physical custody) and decision-making authority (legal custody), they can be hard to solve in an adversarial process—and are often more productively addressed in mediation.
There are, of course, a few situations unsuited for mediation: for example, partners with a history of domestic violence or an unwillingness to be transparent about finances. Even in the latter case, though, mediation might be helpful, because a refusal to be financially forthcoming is only a barrier to mediating financial issues (like spousal maintenance or child support). Since custody issues are addressed using a different standard—the best interest of the child—an unwillingness to be open about each partner’s finances isn’t necessarily an impediment to resolving parenting issues through mediation.
Some couples worry that, if they have a lawyer they like, they have to continue with the litigation process to keep working with that attorney. But mediation makes important use of attorneys, and already having counsel can be extremely helpful in the mediation process. Once you and your partner reach an agreement through mediation, you’ll have the option to have the mediator draft a binding settlement agreement that can be reviewed by your respective attorney or a Memorandum of Understanding that your attorney can transform into a final agreement. Either way, your lawyer can and will remain an important part of the process even if you decide to use mediation after litigation has begun.
If you and your partner are unhappy with the process you’ve started, you’re not trapped. You can still regain control over your divorce by incorporating mediation to resolve all or some of the outstanding issues you and your partner are facing. To learn more, please email me at firstname.lastname@example.org or call me at (646) 491-9008 to schedule an initial consultation.