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Learn when divorce mediation is likely to succeed -- and when it might not.

Even if you (or your spouse) don't feel ready to mediate, when you consider the financial and emotional costs of a contested divorce, you might want to give mediation a try. But before you do, consider your relationship with your spouse. You are most likely to have a successful mediation experience if all or most of the following statements are true.

The Decision to Divorce Is Mutual

Sometimes, the decision to divorce is mutual. Both spouses come to the conclusion, more or less at the same time, that the marriage is over. For other couples, the decision is more one-sided. One spouse decides that a divorce is necessary, while the other spouse is unprepared for, and perhaps opposed to, the idea of getting divorced.

When the decision to divorce is mutual, spouses usually find it easier to begin working together on a settlement in mediation than they would if one spouse initiates the divorce. Where one spouse makes the decision, it is natural for the other to resist cooperating with any requests to move along in the process, including a request to mediate. This usually changes with the passage of time, so factor timing into your assessment of your readiness. If the divorce was more one person's decision than the other's, more time may be needed before you begin mediating.

You Have No Desire to Reconcile

If you and your spouse have accepted (however reluctantly) the reality of your separation's being permanent, and if neither one of you has an overwhelming desire to reconcile, then the odds are that each of you has reached an emotional point in the divorce when mediation can be productive. This doesn't mean you must rule out the possibility of reconciliation. But you do have to be ready to focus on what happens if you and your spouse don't get back together.

You Want to Stay on Good Terms With Your Spouse

Spouses who want to remain on good terms with each other, either because they have children together or because of their own values, can use this motivation to get through the rough spots in negotiating and compromising during mediation. It is not essential to a good mediation, but it certainly helps.

Do you have a high level of animosity toward your spouse that could undermine mediation? If so, you might find it helpful to work with a counselor on ways to keep this animosity in check while you go ahead with mediation. Another option is to find a mediator who will conduct some or all of the mediation in separate meetings so that you don't have to deal directly with your spouse.

You Don't Blame Your Spouse for Your Separation

It's natural at times to blame your spouse for things that went wrong in your marriage or for the decision to divorce. But, if you feel that your spouse is entirely, or almost entirely, to blame, you might find it hard to enter into any agreement in mediation that your spouse considers acceptable.

Also, if you want your spouse to acknowledge and pay for his or her wrongdoing in some way, such as giving you the bulk of the marital property, mediation may not succeed, because your spouse may not be prepared to accept any blame, let alone pay for it in some tangible way. If your state's laws allow you to prove fault as a ground for the divorce, and you have the emotional and financial resources for it, maybe a contested divorce is the right approach for you.

You Understand the Financial Situation

Financial issues are a big part of any divorce. In order to negotiate a good financial settlement, you need to understand the financial reality with which you are working. The mediation process can help you get a better handle on your financial situation, but the more you know to start with, and the more comfortable you are talking about financial matters, the more confident you will be going into mediation and the fewer surprises you'll encounter. If you know very little about your joint finances and your spouse is very knowledgeable, you may feel at a disadvantage going into the mediation.

Your Spouse Has Not Lied to You About Anything Important

If your spouse has lied to you in the relationship, you may need to take a close look at whether or not you can trust your spouse to be truthful and sincere during the mediation. If your spouse has lied to you about an affair, you may understandably be afraid to believe anything your spouse tells you, especially if you only recently discovered the deceit. But this doesn't necessarily mean that your spouse will lie about other crucial aspects of the relationship, such as finances and property.

If your spouse has lied to you about property or finances, you have a different problem. It might not be wise for you to rely on the voluntary exchange of information. You may want to consult a lawyer about other ways to verify important facts independently. You may even need to ask the lawyer to conduct legal discovery of the facts and records to give you a complete financial picture before starting mediation and attempting to negotiate a settlement. It may also be important to work closely with a lawyer or financial adviser during mediation to develop settlement options that don't rely on your spouse to provide information in the future.

You Can Disagree With Your Spouse Without Saying or Doing Things You Later Regret

If this statement is true, you have the ability to stand up for yourself during a conflict with your spouse without losing control of your own behavior. You don't need to be perfect to have a good experience in mediation. After all, helping you communicate constructively is one of the mediator's main jobs. But, if your emotional reactions to your spouse are so strong that even attempting this seems impossible, then mediation may not be the right thing for you just now.

You Are Not Easily Intimidated by Your Spouse

In mediation, you will speak for yourself and negotiate your own agreement. If you find yourself easily intimidated in your spouse's presence, speaking up may be hard for you. Practicing in mediation, with the coaching and support of the mediator, can help you get better at this, but you'll need a minimum level of self-confidence just to start the process.

Physical Violence Is Not an Issue in Your Relationship

If physical violence is part of the relationship with your spouse, it may not be possible to keep the playing field level and tempers cool enough to negotiate an agreement directly in mediation.

Alcohol or Drug Abuse Is Not an Issue in Your Relationship

An alcohol or drug problem can impair someone's ability to think clearly and make sensible decisions. It can also lead to out-of-control behavior. This can undermine the success of any negotiation, whether it is conducted between lawyers or during mediation.

You Feel That Your Spouse Is a Good Parent

Mediation is usually considered one of the best ways for divorcing parents to negotiate agreements about their children. You can talk, parent to parent, about what is best for your children, rather than leaving the decisions up to strangers. Differences in parenting styles or the amount of time each of you spends with your children can be addressed in mediation.

However, if you and your spouse strongly disagree about the ability of one of you to take care of your children, you may not be able to negotiate an acceptable custody arrangement until that issue is fully evaluated. This is especially true if the problem you are concerned about is so serious as to constitute child abuse. If your disagreement about parenting issues is so pervasive that you cannot agree about how to proceed, you may need to get things started through the court. Even so, you might be able to use mediation to negotiate an agreement after the evaluation phase is completed. In fact, you may be required by the laws of your state to attend mediation in a court-sponsored program before a judge will even hear your case.

Copyright © 2006 Nolo

by Attorney-Mediator Katherine E. Stoner

Who is at a disadvantage in mediation: men or women? An expert debunks myths about divorce mediation.

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 and/or refuse to sign an agreement that seems unfair to her.

Myth: Mediation is more hassle than hiring a lawyer to handle the divorce.

Fact: Whether divorcing spouses mediate or hire a lawyer to handle the divorce, they have to do a certain amount of legwork in 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.

Fact: 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 greater communication skills and self-confidence, as well as agreements they can really live with.

Myth: Mediation makes the divorce take longer.

Fact: 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.

Fact: 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 needed.

Myth: All divorce lawyers understand and support mediation.

Fact: Divorce mediation is still a relatively new phenomenon. 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.

Fact: Mediation 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.

Copyright © 2006 Nolo

by Attorney-Mediator Katherine E. Stoner

You can mediate without a lawyer, but here's how consulting a legal adviser can help you.

A legal adviser is a special type of lawyer -- one who is willing to consult with you as an integral part of the mediation process. While business lawyers have long served the role of consultant to their clients, divorce lawyers are accustomed to taking over and handling the entire case. For this reason, many lawyers who have special expertise in the divorce area are unwilling to stay on the sidelines as a consultant. As mediation is used by more and more divorcing couples, however, the need for consulting lawyers also increases. As a result, many divorce lawyers are becoming mediators, and these lawyers usually are happy to work as consulting lawyers on cases they aren't mediating.

Why Consult a Legal Adviser

At some point before or during mediation, you may want to consult with someone about your legal rights. While you can learn a lot about your rights from doing your own legal research, consulting with an actual legal adviser can help you get answers that are specifically tailored to your case.

Even before the mediation, a legal adviser/law coach can help you evaluate the option of mediation, select a mediator, and persuade your spouse to mediate.

During the mediation, a legal adviser can act as a law coach on an as-needed basis. Between sessions, you can consult with your law coach to clarify questions and prepare for negotiations. A good legal adviser can coach you in negotiating techniques and help you think up creative solutions to propose in the mediation that are better than or at least as good as what you could get in court.

A legal adviser can also help predict the range of possible legal outcomes if you were to go to court -- and the cost of paying a lawyer to fight for them. Knowing the possible outcomes can be essential to a successful negotiation.

Perhaps most important, a legal adviser can review any written agreement prepared by the mediator to make sure that it says what you want it to say and that it will be legally binding once signed.

Finally, your legal adviser can interface with the court, helping you prepare the papers needed for an uncontested divorce once your settlement agreement is signed, if your mediator does not do that for you.

What kind of temporary orders you can get in family court, and how.

Typical lawsuits take months, if not years, to make it to court. But if you're getting divorced and need a quick decision from a judge about who gets the kids, the car, the money in the bank accounts, or the house -- or if you need money for support right away -- obviously you can't wait that long.

You don't have to. When couples separate, important issues are often resolved in a short hearing before a judge, instead of requiring a full-scale trial. These hearings are usually held in a special court, called family court in most states.

Even though these quick hearings are less formal than standard court hearings, their brevity means that you must be prepared and know exactly what you want. You may have only a few minutes to ask for it.

What Temporary Orders Are For

Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.

Spouses can also ask a court to temporarily:

• restrain a spouse from coming near or contacting the other (or, if he or she hasn't already done so, to move out of the family home)
• establish child custody and visiting arrangements
• provide for spousal support (alimony) and/or child support payments
• order either spouse not to sell valuable assets, and/or
• give possession of the family home or car to one of the spouses.

These temporary orders are usually valid until the court holds another hearing or until the spouses arrive at their own settlement through negotiation or mediation.

When to Ask for a Temporary Order

When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.

This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children -- often granting physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. This may sound extreme and unlike your future ex-spouse, but some people behave uncharacteristically when under duress and feeling threatened. And, if your future ex-spouse raises such a claim, the police or judge are usually obligated to hear her or him out. However, when you arrive with proof that you filed for custody and child support, the court will most likely dismiss a kidnapping claim.

How to Ask for a Temporary Order

To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states -- unfortunately, not many -- court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.

Here's what you'll probably need:

• A request for the court order you want. In some states, the forms you need are called an Application for Order to Show Cause (OSC) and an Order to Show Cause. An Order to Show Cause is a simple, fill-in-the-boxes legal form or short typed legal document that sets out what you are asking for -- for example, a temporary child support order. It orders your spouse to come to court at a specific date and time and explain ("show cause") why the court should not grant this request.
• A supporting declaration. This is a written statement, under penalty of perjury, setting out facts that legally justify the issuance of the temporary order -- for example, the need for money to support your children. You can also submit declarations of other people who have first-hand knowledge of the facts.
• A proposed temporary order granting you the relief requested. This order will be signed by the family court judge if he or she grants the relief you request.
• A proof of service. This is a document that proves to the court that the papers have been properly delivered to your spouse. Your best bet is to send everything to your spouse by U.S. certified mail, if your state allows it -- but some don't. Check for instructions that come with the proof of service form; if there aren't any you can check your own state's law about serving papers.

In some courts, you won't be allowed to file papers asking for a short hearing unless you've already filed for divorce. You can do both at the same time; it just means filling out even more forms to get your divorce started.

What to Expect at the Hearing

Your next step is to attend the court hearing where the judge will consider your request. In emergencies, the hearing can be held within a few days. In legal jargon this is often called an "order to show cause hearing."

The hearing may be held in a courtroom or just in the judge's office or "chambers." The judge may listen to a few minutes of testimony from you, your spouse, and possibly other witnesses. Or the judge may only accept written evidence. To support a request for temporary child support, you will probably need to produce copies of an income and expense budget.

The judge will:

• review the details of the requests and the underlying facts
• possibly ask you some questions
• ask your spouse, if present, for his or her side of the story, and
• in child support cases, refer to state guidelines on recommended support, given factors such as each spouse's income and who has primary custody of the kids.

Often this kind of hearing takes less than 20 minutes. At its conclusion, the judge will likely make an immediate ruling, usually either issuing the temporary order you requested or modifying it somewhat. If more information is needed, or your spouse wasn't given the proper notice before the hearing, the judge may issue an order that is effective only until another hearing can be held. In any event, orders such as these stay in effect only until the divorce is finally settled, either through a trial or when you and your spouse reach an agreement.

Copyright © 2006 Nolo