The short answer to this question is “no.” It is not necessary to file for divorce in court before you begin mediation, and it is not in your best interests to do so. Once you file with the courts, a hearing date is scheduled, and the clock starts ticking. It is best to engage in divorce mediation with as few outside pressures as possible and imposing a court deadline by which mediation “has” to be completed puts undue stress on the participants.
It is also important to point out that if you choose to go to divorce mediation, it will not be necessary to go to court later to litigate any of the matters that are resolved through the mediation process. Mediation serves as an alternative to litigation, and participants are able to work out the issues that need to be settled (in a divorce) on their own with the help of a divorce mediator. These include child custody and visitation, alimony/spousal support, division of the marital estate, and many others.
With mediation, the terms and conditions of settlements around critical matters that will significantly impact the futures of everyone involved are controlled by participants, rather than the courts or the attorneys. The mediation process provides room for flexibility and creativity, and it allows participants to come together in a cooperative rather than combative environment that is more conducive to developing joint resolutions.
Once divorce mediation is completed and a settlement is agreed to, a legally enforceable agreement is drafted by an attorney and filed with the court for review and approval. At that point, the terms and conditions of the settlement are just as legally binding as anything that would have been imposed by the court or negotiated between attorneys representing the divorcing parties. The main difference being that participants are able to save untold amounts of time and money by bypassing divorce litigation and coming up with a more peaceable and workable resolution on their own.
Can we still Mediate if we Have Already Filed for Divorce in Court?
Absolutely. If one party has already served the other and started the court process, you can still enter into mediation and work out your major decisions regarding your finances, children, and other areas together. Once divorce has already been filed, however, you will need to notify your attorney that you have decided to go to mediation and resolve your issues instead of continuing to go through your respective attorneys. At that point, the divorce filing may be withdrawn or put on hold to give you more time to complete the mediation process. If the divorce papers are withdrawn, a new filing will be initiated after mediation is completed.
What if We Can’t Agree on All the Issues During Mediation?
Divorce mediation has a very high success rate, because couples usually understand beforehand that they need to enter the process with a cooperative mindset, and they are strongly incentivized to make the process work for them. That said, should there by chance be an issue that can not be agreed to in mediation, it does not mean that mediation was a waste.
An agreement can still be prepared on the issues that have been resolved, and you have the option to either have attorney’s negotiate with one another and possibly litigate the unresolved issue or come back for another session or two of mediation to try and resolve them. Generally, if mediation can work to settle most issues, you can usually settle the rest of them if given enough time. And once you have started the mediation process, it often makes sense to continue using it rather than shifting gears and going to court.
The bottom line is if you are considering mediation, you have very little to lose by at least giving it a try before filing for divorce with the courts. When you go to court, you are putting your divorce in the hands of a judge that may not necessarily be totally concerned about your best interests or the best interests of your child(ren). The mediation process can produce a much better outcome for all parties involved and allow you each to move one from divorce with greater ease and clarity for you and your family.
Recently, a divorced parent asked me my opinion on how to go about giving holiday gifts to her children. This was her first holiday season since her divorce, and immediately I knew that she and her ex-spouse most likely did not utilize the divorce mediation process.
The reason I say that is that mediation is a cooperative process in which parents come together and work together, with the help of a divorce mediator, to resolve potentially difficult issues, some which may revolve around the holidays. Some of the issues that are discussed during mediation include adjustments to parenting schedules during the holidays, who spends time with the kids and when, what activities the parents will continue to do together with the kids (if any), and how to handle holiday gift giving.
Like with all other important issues, the answer to how to go about giving holiday gifts depends on your specific circumstances, your unique family dynamics, and more specifically how engaged parents want to be with one another when it comes to giving gifts to their children.
Here are some general guidelines to help newly divorced couples with gift giving during the holidays:
Communicate and Coordinate
Going into the holidays after a divorce, it is always best to speak with your ex-spouse about how gift giving will be handled. It is good to talk about gifts well ahead of time, because couples tend to be less emotional about it when they are not already in the middle of the holiday shopping season, and they have more time to discuss and plan what they want to do. Try to be on the same page with your ex as much as possible, so you are both ready to make this the most joyful season possible for your kids.
Decide Where Gifts are Coming From
One of the first things you need to work out is how to present the gifts to your children. Will they be given separately? Will they come from both of you jointly? Or maybe some of each. If you have young kids who still believe in Santa, this can be a big help with your holiday gift giving. If you buy some gifts jointly and present them as coming from Santa, this can give your kids a tradition that is familiar and remains constant, even though their parents are divorced. Some couples I work with also continue to spend time together as a family while their young children open gifts from Santa.
Establish a Budget
Some couples I work with set a budget and one parent is responsible for picking out joint gifts. Other parents want to establish separate gift giving, but they agree on limits so that one parent who may be at a financial disadvantage doesn’t feel like the other parent gets to buy all of the expensive gifts. Whichever way you decide to do it, it works best to have a set amount that you and your ex agree to spend on holiday gifts.
Don’t Make This a Competition
Picking up on the last point, never make this a competition with your ex over who can give the best and/or most expensive gift. Establishing a budget can help prevent holiday gift giving from devolving into a competition. But you should also proactively discuss this issue with your ex and agree on some “noncompete” guidelines.
Remove the Conditions
In addition to what will be given to your kids, there may also be a question of where the gifts will be kept and even how they will be used (such as when you are giving your kids cash, gift cards, or other gifts with some flexibility). Parents should be very flexible about this issue and not attach strings to the gifts they give. For example, sometimes it may be more practical for your child to keep and use the gift at the other parent’s house. As much as possible, try to do what is best for your kids, even if it may be a blow to the ego. And this brings me to my last point…
Focus on the Kids
When in doubt, keep this one rule in mind; the holidays are not about you, they are about the kids. As such, your priority should be giving them the best holiday you can under the circumstances. Put your feelings toward your ex aside and do not do anything to undermine them or create tension within the family especially during this time of the year. And even if your ex does not reciprocate, be the bigger person, take the high road, and do everything you can to set a positive tone within the family.
Recently, someone I know thanked me for doing the work I do and for “saving relationships”. I often speak to people who are confused with what I do, and inevitably they ask me, “so do you help couples stay together” and I always have to explain that I’m not a marriage counselor.
This time I responded with, “unfortunately I don’t, I help couples separate and divorce in a way that reduces conflict and most importantly looks after the best interest of the children and the family as a whole”. This time the response I received stopped me in my tracks, she said “yes, I know what you do and you do help save so many relationships, not only the couple in helping them to avoid conflict and ugliness but also for the future of their children.”
People who know me know that I’m very passionate about what I do. And over the years, I’ve written extensively about the many reasons why I believe divorce mediation is one of the best ways for couples to dissolve their marriage. The mediation process can be completed for a fraction of the cost of litigation, and it can usually be done in a much shorter period of time. The process is entirely confidential, offers greater flexibility and control over the final divorce settlement, and it employs a cooperative rather than combative approach, which is far less stressful for divorcing couples.
As great as all of these benefits are, however, they pale in comparison to the long-term benefits of the process. One of the most overlooked aspects of divorce mediation is the positive affect it has on the long-term relationship between the spouses, and the impact this has on the children (if the couple has children).
We all know that divorce is never pretty. When a couple reaches the point in which they have decided that the marriage cannot be saved, there are naturally going to be conflicts and disputes that brought them to this point. But just because you are ending your marriage will no longer be life-long partners, this does not mean you and your spouse cannot maintain an amicable relationship.
Unfortunately, the divorce process itself often makes the relationship between the spouses worse. When you split up, there are issues that need to be settled, such as who keeps the house, how the rest of the assets are divided, and who gets custody of the kids. Long, drawn out court battles over these issues is not only expensive financially, but it can also be very costly with regards to the damage it does to relationships.
For example, when children are caught in the middle of a custody battle, they are in a no-win situation. They love both of their parents, and the last thing they ever want to do is pick sides between them. But sometimes, they feel like they have to.
Some parents do not realize the long-term effects conflicts like these can have on their children, and the entire family. I’ve known some children of divorce who don’t speak to their siblings because they hold different views of each parent and side with them. This trickles down for generations, and sadly, many people go to their graves without ever repairing relationships that were broken during their childhood.
Divorce mediation provides a way to help prevent this type of situation from happening. During mediation, couples are encouraged to find common ground on the issues that need to be resolved, develop peaceable and workable resolutions (for these issues), and part ways amicably. And when children see that their parents are able to resolve their divorce and still maintain a good relationship, it makes it much easier to accept what happened and adjust to their new reality.
This is an intangible benefit of mediation that you cannot put a price on, and it is the biggest reason I do what I do.
For spouses who are going through a divorce, mediation can help the couple reach a resolution much faster and more cost effectively than traditional litigation. Mediation is a voluntary process in which the spouses work out the terms and conditions of their divorce with the help and guidance of a neutral, third-party mediator. This process can work for just about any couple, as long as the spouses are willing to cooperate. Mediation can even be used for long distance divorces in which the spouses are a significant distance apart from each other.
Virtual Mediation to Bridge the Distance Gap
Many divorcing couples no longer live near each other. At the time they decided the marriage was over, one spouse may have moved out of the area. In other cases, the spouse may have accepted a job in another part of the country, which may have even been a contributing factor to the separation in the first place. There are also many military couples who have one of the spouses deployed overseas on active duty.
For these and other long-distance scenarios, couples can still take advantage of the benefits of mediating their divorce. Through today’s technology, participants can be virtually anywhere in the world when mediation sessions are held. All that is needed is a stable internet connection to communicate through a medium such as Skype, or the ability to make a long-distance phone call. As long as the mediator and other participants can hear each other, virtual divorce mediation can be used successfully.
Advantages of Virtual Mediation
For many couples, long-distance mediation can work better than being in the same physical location together. Here are just a few of the reasons people may prefer virtual mediation:
Busy on-the-go Lifestyles
In today’s society, people have busy schedules. Some professionals travel a lot for work and others just have a lot of obligations; such as work, taking care of aging parents, doing volunteer work, etc. With a packed schedule, it is hard to find time to travel to a specified location for the mediation session. With virtual mediation, this problem is solved. Whenever you have a spare hour or so, you can just call in or connect from wherever you are.
Ability to Facilitate Multiparty Discussions
There are times when it is appropriate to involve multiple participants in a divorce mediation. For example, in more complex cases, you may need the assistance of various financial professionals to work through some of the more complicated economic issues. Some participants may also want others to join (such as adult children or other family members) to provide input or moral support. Virtual mediation makes it much easier to facilitate a session that requires multiple participants.
Divorce is a stressful and life changing event by its very nature. This stress can get in the way of working cooperatively to reach a peaceable divorce resolution, which means the next step might be a costly and protracted litigation proceeding.
Before going that route, virtual mediation is worth a try. In many cases, being in separate locations can be just the solution you need to overcome this issue. Spouses can feel more comfortable and at ease as they speak to the mediator and the other spouse, and this puts them in a much better position to succeed with divorce mediation.
After a divorce is finalized, life goes on and people adjust and move on. Circumstances will inevitably change, and challenges and unexpected difficulties will arise. Ex-spouses get remarried, jobs and income levels can change, a job or another circumstance may take parents and children to another geographic location, health issues come up, and other issues may arise that your divorce decree did not cover.
When a material change in circumstances happens down the road or your ex-spouse is just not cooperating with the terms and conditions of the original divorce settlement or decree, post-divorce mediation can be an effective and cost-efficient way to resolve these issues.
Most post-divorce issues can be worked out through mediation. Some of the most common include:
- Financial Changes: There are many circumstances that can cause material financial changes. People change jobs, run into health problems, and sometimes become disabled. As children grow up, their financial needs change as well. Financial changes may call for a modification of the child support and/or spousal support arrangements, and maybe other changes as well.
- Parenting Schedule Changes: As kids get older, they often get involved in various extra-curricular activities. These activities can affect the time parents are able to be with the children. Parents’ schedules may also change because of a new job or another obligation. These types of changes may require parents to revisit the parenting/visitation schedules.
- Out of State Relocations: A new job or another circumstance may require one parent to move out of the area. This can often become a very contentious issue as it is almost certain to affect the parenting schedule, especially if it is the custodial parent who is moving.
- Communication Problems between Parents: Sometimes, parents just have difficulty communicating with each other. Virtually every conversation turns into a heated conflict, and parents are not motivated to communicate much at all anymore. This causes breakdowns such as a child not being picked up from school, missed doctor’s appointments, and similar problems. In such cases, mediation may be needed to help improve communication between the parents.
- Ongoing Business or Financial Relationships between Ex-Spouses: Some spouses who get divorced still have shared financial interests. One of the best-known examples of this is the Bezos divorce, in which the wife retained ownership of a significant percentage of Amazon stock. If you and your spouse own a business together and/or have shared investments, it is important to sit down and work out a formal agreement for how your shared financial interests will be handled post-divorce.
The Advantages of Mediation for Post-Divorce Agreements
Mediation can be a refreshing change from going through litigation (that often leaves parties with bad feelings) or even negotiating settlements through legal representatives. The process is done in a cooperative rather than combative setting, and it is guided by a skilled, third-party mediator whose goal is to bring the parties together to develop a win-win resolution that works for everyone.
There are several reasons those who have been through a divorce often prefer mediation when it comes time to revisit issues between the ex-spouses and other parties:
- Creative Solutions: It is the nature of family courts to impose cookie cutter solutions to family legal matters. But each circumstance is different, and the issues that come up are as unique as those individuals who are dealing with them. With mediation, you are able to talk through these issues between yourselves and the mediator, and you are free to be creative and think outside the box when developing a resolution.
- Confidentiality: The mediation process is entirely private and confidential, and everything that is discussed is kept between the parties and out of the court record. This allows parties to speak more freely and exchange ideas more openly without fear that something they say might be used against them later on.
- Cost Savings: Going back to court for some type of post-decree modification usually means hiring lawyers, scheduling hearings, and/or negotiating back and forth at whatever hourly rate your legal counsel is charging you. If you handled your divorce this way, you know how quickly these costs can add up. Mediation can usually be done for a fraction of what it would cost to bring your issues back before the court.
- Convenience: In addition to cost savings, mediation can usually be completed much sooner than a court proceeding. It is done on your schedule rather than the court’s, and it can be done in a location that is most convenient for the parties involved. You can even do virtual mediation if the parties are unable to meet together in the same physical location.
- Control: Although the mediation process is guided by a neutral third-party mediator, participants are ultimately in control of the outcome. The process is entirely voluntary, and no agreement can be enforceable unless all parties agree to it. This means no one has the power to impose anything on you that you don’t want; and because of this, participants are far more likely to take ownership of whatever is ultimately agreed upon and abide by it.