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What Does Fairness Mean in Divorce Mediation?

Divorce mediation is certainly its own animal. Many couples come to our office and ask us what is “normal” in divorce mediation, or what is “standard”. The answer is that there is no normal or standard. In divorce mediation, couples get to craft their own Agreement from scratch. At Alternative Divorce Solutions, we do not try to fit a square peg into a round hole and we do not try to create cookie cutter settlements. Instead, we take the time to really listen to our clients. As a divorce mediator, when you really take the time to listen to your clients, as opposed to trying to fit them into some kind of paradigm, it can be surprising what you find out. That being said, the role of a divorce mediator is also to provide legal information. This information is different from legal advice, in that you are giving the clients information about the law says and then allowing them to make their own decision. With legal advice, the attorney is guiding the client along a particular path that the attorney believes to be the best among all alternatives.

With that being said, here is how we strike a balance. In divorce mediation, we start out by gathering the client’s disclosure documents. Then, at our first meeting, we review these documents with the couple to ensure that they are accurate and complete. This allows us to create a space where both parties are aware of the finances and what there is to be divided. This alone allows the couple to start formulating their respective opinions on what is fair and what is not. From there, and after the mediator has examined all of the assets and debts, the mediator will then start providing the clients with legal information about the particular assets at hand. This could be very general, and could just be an explanation of simple community property concepts, or it could be more specific depending on the type of asset or debt involved. For example, there are different legal rules for accident settlements and student loans, etc.

Next, the couple’s underlying interests play into the equation. Maybe one spouse needs the security of the family home, while the other wants to know their retirement nest egg is safe. This is an opportunity for a possible trade. It is the divorce mediator’s job to listen to what is important to the couple to start guiding them toward options for settlement. Because this process differs based on the assets, debts, and personalities of each couple, there really is no norm. In mediation, the couple can agree to whatever they want and this creates a sense of freedom and empowerment. The days of having a judge cut the “pie” in half in a way that may or may not work for you and your family are over, but only if you choose for them to be.

When you are going through a divorce, there is always a choice. You can choose to litigate your divorce and trust the outcome to a judge’s opinion, or you can come to mediation and decide your own future. While mediation may not be right for couples where there has been domestic violence or other severe problems, it is certainly worth a try for most people.

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