MEDIATION MYTHS-LET THE TRUTH BE KNOWN
Myth: Mediation allows one spouse to dominate another.
Fact: A good mediator
pays close attention to the power balance between the spouses and uses
specific techniques to address any imbalance. If one spouse persists in
dominating behavior, the mediator will call a stop to the mediation
rather than allowing it to continue. One caveat: Even the best mediator
can be unaware of a power imbalance if it only goes on outside of the
mediation sessions and the spouses don't let the mediator know about it.
Myth: Women are at a disadvantage in mediation.
Fact: Women are no more at a disadvantage in mediation than in divorce
court. In fact, women can often obtain a better result in mediation
than they can in court, because the mediation process allows separating
spouses to negotiate an agreement that considers nonlegal factors. Also,
except for court-ordered (mandatory) mediation, a woman is free to stop
the mediation or refuse to sign an agreement that seems unfair to her.
Myth: Mediation is more of a hassle than hiring a lawyer to handle the divorce.
Whether divorcing spouses mediate or hire a lawyer to handle the
divorce, they have to do a certain amount of gathering information and
making decisions. Mediation offers a streamlined approach to the
information-gathering and decision-making processes. In contrast, using
the courts is cumbersome and expensive.
Myth: Mediation is for wimps.
In mediation, the spouses stand up for themselves and what they want.
They don't have lawyers speaking for them and telling them what to do.
As a result, people who mediate often come out of their divorce with
enhanced communication skills and self-confidence, as well as agreements
they can really live with.
Myth: Mediation makes the divorce take longer.
Mediation almost always takes less time than litigating a divorce.
Unless the spouses have worked everything out ahead of time, hiring
lawyers to handle the divorce will almost always take as long or longer
than mediating, even if the lawyers are able to settle out of court.
Myth: There's no place for lawyers in mediation.
Lawyers who understand and support mediation can help mediating spouses
in several ways: by informing them of their legal rights and options,
by coaching them through the negotiations, by coming up with creative
settlement ideas, and by preparing the necessary divorce paperwork once
an agreement is signed. Most consulting lawyers charge a reasonable
hourly fee and don't require a large retainer
(advance deposit). A spouse pays for only as much consulting time as is
Myth: All divorce lawyers understand and support mediation.
mediation is still a relatively new way of approaching divorce. Many
adversarial lawyers have little or no experience with the nonadversarial
approach used in mediation. Some even disapprove of mediation, arguing
that divorcing spouses should not negotiate on their own but only
through lawyers. These attitudes are slowly changing, as divorce lawyers
become more aware of mediation and its benefits for their clients.
Meanwhile, spouses wishing to mediate their divorce need to find
consulting lawyers who are "mediation-friendly."
Myth: In mediation, the mediator decides what's fair.
Fact: Unlike a judge or an arbitrator,
a mediator has no power to make decisions for the divorcing spouses.
The mediator's job is to help the spouses negotiate an agreement that
each of them considers fair enough to accept.
Myth: Mediation is always the best option for every divorcing couple.
works for most divorcing couples. As long as both spouses are able to
speak up for what's important to them and can behave themselves
appropriately in mediation, the process can work for them. On the other
hand, mediation may not offer enough protection and structure for some
couples. For example, a couple with domestic violence or substance abuse
issues may need to have lawyers speak for them instead of trying to
negotiate directly. In addition, some spouses may prefer to assume the
risks and cost of adversarial litigation in order to make a point or
assert a legal right rather than compromise in a settlement.