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Can it work, and, if so, what are the benefits of solving your issues without attorneys?
I had never heard the term mediation until I was going through a divorce 10 years ago. The judge required my ex and me to see a mediator. I asked my attorney what that meant.
He explained that mediation is a process in which a divorcing couple, along with a professional mediator, communicate with the goal of drafting a divorce settlement and parenting agreement that both think are fair and acceptable.
My initial reaction? I wanted to throw up. Angry, resentful, hurt, and hostile, the last thing I wanted to do was sit in a room with the man who I felt at the time just ruined my life, talk to him for hours, and together come to agreements about financials and our children. I didn’t want to be on the same planet with this person, let alone sit and talk with him! I felt it was impossible for two people who had that much resentment to agree on anything.
But surprisingly, after just a few meetings, we had documents on the table that we both agreed made sense, and our divorce became final.
Fast-forward two years. We were back in court over a disagreement. The judge required us to go to mediation, and again we came to an agreement. But three years after that, guess what? We were back in court and ordered to mediate again!
The point of my story is that life is ever changing. Expenses change, jobs change, kids get older, one person gets involved in a romantic relationship and maybe the other gets married again. So it isn’t surprising that original divorce agreements might need to be altered frequently. For example, how can you decide who is going to pay for college if your kids are ages three and five when you get divorced? You can’t. Also, who knew that it was going to cost $900 per year for high school books? Shouldn’t that be discussed in the divorce agreement? It isn’t if your kids are babies when the two of you split.
Divorced couples who need or want to change their agreements have three choices:
1. Contact their attorney and begin litigation. (If you live in Illinois, your judge will order you to go to mediation anyhow, so why bother?)
2. Hire a professional mediator to help them work out a new agreement.
3. Try do-it-yourself mediation. No professionals needed, just the couple sitting down together and changing their agreement. The couple can then either show what they agreed on to an attorney to file in court (to make it legal) or put it in a drawer and live by a verbal agreement.
There are advantages and disadvantages to all three choices and many factors to take into consideration when deciding how to proceed.
To talk about the benefits of mediation, I sat down with Ellen Feldman, a Chicago-based attorney turned divorce mediator. Feldman confirmed that Illinois law requires a couple try mediating their issues before filing a motion.
“Going to an attorney should result in the attorney telling them mediation is required first, so they need to try that route,” says Feldman, who spent 15 years in commercial litigation before becoming a divorce mediator 10 years ago. “They don’t need to succeed at mediation but do need to try.”
Here is the rest of my interview with Feldman:
Q: What are the benefits of professional mediation versus litigation?
A: Mediation fosters improved communication. The mediator facilitates conversation between people who are having trouble communicating. People tend to be more open-minded and calm because there is someone neutral guiding their conversation, asking questions, reframing, repeating what one said so the other can understand, and offering suggestions about how to resolve an issue. Mediation saves time and money. Litigation costs a lot of money, plus it doesn’t teach the couple to speak or communicate with each other, only through attorneys.
Q: Is it possible for a divorced couple to mediate themselves, without using a professional mediator?
A: Do-it-yourself mediation does not give you the many benefits that professional mediation offers, such as improved communication, bouncing ideas off each other, deciding your method of communication, and how to best coparent. I recommend going to a professional mediator first and then talking about things together. A couple should be encouraged to talk to each other between mediation sessions, do homework, think, and discuss the issues. This will also provide the added benefit of improved communication. Hopefully over time, the improved communication gained from mediation will allow them to solve problems on their own.
Q: Under what circumstances do you recommend litigation instead of mediation?
A: For straightforward financial issues, if the couple really cannot talk to each other or communicate, litigation may be the only route. Mediation is required if there are parenting issues involved. That doesn’t mean they have to succeed, but they have to try. Also, mediation will not work if people are doing it for the wrong reason, cannot or do not want to resolve issues on their own, or there is emotional or physical abuse or an imbalance of power in the relationship.
Getting back to my ex and me, here’s where I think we messed up. Because we were unable (and unwilling) to sit down with each other and communicate our needs effectively, we spent a lot of time (years, actually) and money on attorneys, litigation, and mediation sessions with nothing really getting resolved for more than a short period.
Had we been less angry and hostile, and willing to put our personal differences aside to talk “business,” we could have possibly saved ourselves a lot of time, money, aggravation, and extra hostility that can result from being in a legal battle.
When it comes to couples being able to mediate, time is a factor, as divorced couples tend to become more amicable as time goes by. But I also think couples have to be willing to be open-minded and put the effort in to make the mediation process work. Both have to want it.
Divorce is never easy, but mediation is such a better alternative than spending years fighting in court. And, undoubtedly, the most significant benefit of mediation (professional or do-it-yourself) involves the kids, who are happier when they see their parents communicate in a positive way. In other words, when the roller-coaster ride of highs and lows between a divorced couple no longer exists, life is a lot smoother for everyone.
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Jackie Pilossoph, ESME’s Divorce Resource Guide, is the creator of Divorced Girl Smiling, a website that helps men and women facing divorce. She is also a weekly Huffington Post divorce blogger; the writer of a weekly column, “Love Essentially,” for the Chicago Tribune’s Pioneer Press; and a freelance corporate and business content writer. Pilossoph holds a master’s degree in journalism. She lives in Chicago with her two children. Oh, and she’s divorced.