Mediation: Not Another Opinion ... A Solution

Mediation is a confidential private format in which a neutral third party – the mediator – assists the couple in sorting out their affairs and come to a mutual agreement about the dissolution of a marriage. Mediation is a solid option even for those that are having trouble with communication. It is cost-effective and it avoids the legal war of going to court or litigating the aspects of a divorce.

While a lot is spoken of with regards to the merits and difficulties of mediation, there are many myths that abound concerning this process.

First common myth: Mediators need to be attorneys.

In fact, when it comes to mediation, people are not seeking another legal opinion. People in mediation are looking for solutions and a way to resolve the problem. The role of the mediator is, in fact, to avoid offering opinions or commentary on the situation. The role of a good mediator is to bring the parties to an agreement. That is not done with legal opinions. It is accomplished through firm and untiring negotiations.
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Second common myth: Mediation allows one spouse to dominate another.

In mediation, another role of a good mediator is to pay attention to the power balance between the partners and use specific techniques to address any imbalance. If one person persists in a dominating behavior, the mediator will call a stop to the mediation rather than allowing it to continue. One caveat to this is that even the best mediator can be unaware of a power imbalance if it only goes on outside of the mediation sessions and the partners do not let the mediator know about it.
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Third common myth: Women are disadvantaged if they enter mediation.

The truth is that women are no more at a disadvantage in mediation than in divorce court. The reality is that women may often find a better result in mediation than they could in court. This is because the mediation process allows separating partners to negotiate an agreement that considers non-legal factors as well as legal items. With the exception of a court-ordered (mandatory) mediation, a woman may stop the mediation process and/or refuse to sign an agreement that seems unfair to her.
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Fourth common myth: Mediation is more problematic than hiring a lawyer to handle the divorce.

In any case, whether divorcing partners mediate or hire a lawyer to handle the divorce, they must still do legwork in gathering information and they must take responsibility for making decisions. Mediation offers a more streamlined approach to the information-gathering and decision-making processes. This is in contrast to the cumbersome and expensive process of using a court to make final decisions – decisions that are not always in any ones’ favor and without taking into consideration personal issues that can be addressed in mediation.
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Fifth common myth: Mediation works for couples that have already agreed on divorce issues.

This is absolutely false. Mediation actually is best suited when there is more conflict, assuming there is not any physical abuse. When a partner is at the opposite end on every issue, going to court will usually only make matters worse. However, when a couple, through mediation, is given the power to reach agreements on their own agreements feel fair and healing can begin.

It is helpful to remember that peace is not the absence of conflict. Peace is the ability to manage conflict respectfully, efficiently and effectively.
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Sixth common myth: My rights will not be represented if I mediate.

In the world of litigation, attorneys may use this as a tactic to frighten clients from considering mediation as an option. Not having your rights protected is simply not true. Mediators will spend considerable time educating the couple about the guidelines and statutes the courts use when making a ruling. The mediators will not be advising the couple or the individuals regarding legal matters. This would comprise the impartiality which is paramount in the mediation. The mediator will not discourage the couple from reviewing the agreement with their attorney as the mediation concludes. An attorney who is pro-mediation can be a great resource. It should be noted that most of the couples do not get an attorney because they educate themselves with outside materials to ensure that their rights are being considered.
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Seventh common myth: Mediation is mainly for low income couples that need to save money.

The value couples find in the mediation process is not found in the money that it saves. The value is in the quality of the agreement that you can reach. Mediation cases involve many high profile divorce cases that include celebrities. The reason is because it is a confidential process that the public and press are not entitled to view. Mediation is generally less expensive and takes less time but it would be an error to look at it as the “cheaper” route. Yet, if cost containment is a critical issue for a couple they could definitely find more value through the use of mediation.
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Eighth common myth: Couples can get a better result if they go to court. Mediation may give someone a worse decision that if the court handles it.

This is not true. Overall experience of litigated divorces that go before a court is that neither party walks away happy. In the rare case that has a clear “victor,” that party tends to express feelings of disappointment at best, and certainly not elation. Likewise in the case that has a winner from the court’s findings, there is also the other losing side that feels defeated or even humiliated. The big problem is not being able to determine which end of that stick you will find yourself.

As one court observer noted, “The reality of a divorce court trial is that most litigants walk out of the courtroom feeling as if they have just been run over by a truck. Even the winner often finds his or her enthusiasm dampened by the warning they hear from their divorce lawyer: to prepare for the next legal round, when their ex-spouse appeals the judge's decision.” And, even when a courtroom outcome is considered reasonable by both parties, the legal fees and emotional costs are very high.

We do not hold that all cases are suited for negotiation or compromise. That could be short-sighted. No divorce process (litigation, mediation, collaboration, arbitration) is appropriate for all divorcing parties or cases. Generally, however, divorce mediation is the sensible, affordable option that results in both parties having greater control, a more satisfying divorce experience and often, an optimal result. It is our opinion that mediation is nearly always better than a hard fought, winner-take-all, custody battle approach to divorce.
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Ninth common myth: All mediators are not the same and all mediation processes are not equal.

It is not enough to simply get through a divorce. It is important to build a positive future that is worth stepping into.

Because mediation has become more popular, more mediators are beginning to practice. The mediator needs to have a working understanding of the laws affecting mediation, the financial consequences of divorce and the emotional aspects of divorce. It is our opinion that mediation should not be a mechanical process.

That is where NLP – Neuro-Linguistic Programming – comes into play. NLP is the study and practice of working with subjective experience of clients. This is vital in the mediation process since emotional concerns are so high. By offering alternatives ways of approaching issues as well as utilizing techniques that empower positive motion towards resolution, NLP can actually enhance the process to a point of empowering the couple as they prepare for a new life after the dust of the divorce has settled.

Does this process take an attorney? The answer is no. It is our experience that legal counsel tends to offer solutions and move clients towards an outcome that the attorney is comfortable and familiar with. That is not the goal of mediation. Through empowerment, the couple arrives at their own conclusions of fairness and equality. A simple split of assets may be typical but it may not be equitable between divorcing parties. This may be due to the perception of value placed on different items obtained in married life.

Through NLP Mediation, economic issues are explored and the couple is apprised on their outcomes. But they are allowed to draw their own conclusions with the support of facts and materials that put them in the driver seat.

NLP Mediation also works with the emotional dynamics of separation. This is not therapy by any means. It is a pragmatic way of looking forward – moving beyond the gulf of divorce and getting to a more positive view of your future potential.
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