- Family Law
- Dispute Resolution
Mediation is a non-adversarial, “interest-based” method of alternative dispute resolution used in many types of civil cases, including divorce. Private mediation requires the agreement of both parties to participate in the mediation process. The parties meet with a neutral third party, the mediator, who guides discussions on issues in dispute, such as alimony, child custody, child support and division of property. (Mediation FAQs)
When confronted with divorce, a number of issues and considerations immediately emerge when choosing the right process to resolve your marital disputes, reach an agreement, and complete the legal process of getting your “divorce.” Among the most common considerations that immediately come to mind are privacy, controlling the cost, and avoiding the incredible stress associated with the process. In this context, Divorce Mediation has become a popular alternative to traditional litigation of divorce in Connecticut Family Court, but this popularity is rooted in very superficial characterizations of how mediation generally works when “the devil is always in the details.” The truth is that every case is not a good candidate for Mediation, there are a great many nuances to consider before committing to Divorce Mediation, and there are a wide variety of Divorce Mediation models that can be employed by the professionals you engage.
A closer look at Divorce Mediation reveals important risk factors that should be considered as well as very distinct advantages/disadvantages when compared to traditional litigation or a hybrid litigation/mediation divorce process. [See Divorce Mediation FAQs]
Every case is unique and some situations and people are better candidates for mediation than others.
Ultimately, it is not a choice of process or venue that controls tone and tenor in your dissolution, it is integrity, behavior, and the every-day actions of the parties involved that dictates the civility.
Trusting your spouse is a prerequisite to engaging and relying on the mediation process because access to information for your decision making is largely based on the honor system.
There are limited protections during a mediation process, especially if you start mediating before you start a divorce action. There is a risk that the status quo can change due to the self-serving actions of a party (or due to unforeseen circumstances) with respect to income, property and children (Automatic Orders in a formal divorce action mitigate this risk). Consider if one party does not want to get divorced or has other reasons to seek a delay. You may find yourself mediating for far longer than you have planned, and with little recourse to keep matters on a specific timeline.
If mediation is not successful, you need to start over, which may add to both the financial and emotional expense of a divorce.
A closer look at Divorce Mediation also reveals that a choice between mediation and litigation is not one versus the other, but rather combinations of mediation and litigation is, in fact, possible. Simply put, more flexibility can be built into the Divorce Mediation process than most understand and an experienced Divorce Attorney can design a hybrid process to offer the best of both worlds and greater protections for you than Mediation alone.
Mediation can certainly help keep you (and your private life) out of a courtroom. And, it is natural to be attracted to the idea of a non-adversarial process or to have a desire to find a process that purports to minimize conflict. And, there are a lot of benefits to mediated processes. But the reality is that there are many wildcards and extremely difficult and emotional decisions involved in every divorce and one can’t reasonably predict or control how their spouse will react as things progress (or even how they will themselves react) — even with the best of intentions.
Divorce is, at its core and by its nature, an adversarial process wherein each party has separate and distinct legal interests. So, it is not unreasonable to suggest that the idea of Divorce Mediation, where two parties settle their differences (only) with the help of a neutral facilitator, is a genuinely ambitious one. Nor is it unreasonable to suggest that those who are able to travel that path of Mediation successfully are more likely to be the exceptions and not the rule.
So, for all these reasons and more, it is extremely important to understand the nuances of all the process models available to you and to fully consider all the risk factors involved in Divorce Mediation when considering Divorce Mediation and deciding: if Divorce Mediation is right for you; selecting what type or which professionals you engage; and customizing a process best suited for your unique circumstance.
Divorce Mediation can be used more flexibly than most commonly understand. Here are some examples:
In short, there are a variety of ways to design and set-up hybrid processes under the general banner of Divorce Mediation with the goal of delivering the best of both worlds (both mediation and litigation). Understanding and educating yourself about the nuances and risk factors of Divorce Mediation is the first step to ensuring you start on the right path.
The experienced Family Lawyers at Needle | Cuda will help find an approach to Divorce Mediation and design a process for you that optimizes your chances for a successful outcome; maintains civility; maximized privacy concerns, creates a level playing field; ensures status quo protections are in place as a backstop; works to create cost efficiencies, and mitigates the many risk factors to the greatest extend possible.
Mediation can present a boiled-down process to give an idea of what the outcome might be at trial and to get to that outcome by agreement rather than trial, sooner rather than later, with inclusion of certain carefully crafted details that a judge might not include after trial. Mediation sessions can be joint (both parties, their representatives, and the mediator) or individual sessions (one party, their representative, and the mediator) with “shuttle diplomacy” back and forth and may take place over the course of a morning, a day, a series of days or even over a number of weeks depending on what is agreed upon and necessary to work toward conclusion of the matter.
The mediator can also separate out the disputed issues in ways that make them easier to discuss dispassionately. You may be better able to articulate your side of the story just telling your perspective to the mediator, rather than in the artificial environment of court testimony. If you are successful in resolving your main areas of dispute, you begin work on crafting a marital settlement agreement. Sometimes that work will begin the same day as the mediation itself. If the judge then approves your settlement agreement, it becomes part of your divorce decree. If you do not reach a complete settlement, mediation may help to narrow outstanding issues and result in a more streamlined trial.
Child custody and related issues;
Post-divorce financial issues, including alimony and child support;
Post-divorce child custody and parenting plan disputes;
Mediation has proven so useful that often the family court will require some version of the method to be attempted before allowing a case to go to trial, such as a Pretrial or a Special Masters conference. Unfortunately, there is less availability of Court-provided mediation since the COVID pandemic, and the Court often encourages private mediation instead. The Family Relations arm of the Court will try to help settle matters even in a litigated setting, but that is often limited to a conference call or series of phone calls. Having a lawyer on your side can help make those Family Relations interventions more productive and help ensure that your position is heard. Even when there were more Court-provided mediation services available, they were often shorter and less in depth than a private mediation. Thus, even if you do not elect to do private mediation, you may still be required to engage in some form of a court-sponsored mediation program — although that will likely not be as in-depth as a private mediation could be.
One way or the other, having a knowledgeable, caring, and communicative lawyers at your side like the ones on Needle | Cuda’s team will provide you with confidence so you never get that sinking feeling of “What just happened?” when an important issue gets “resolved” in your Divorce Mediation; or to realize after the fact that the result is not what you thought it was; or that your voice was not properly heard or represented in the result.
It is important to understand that mediation generally falls outside the important protections offered by formally filed lawsuits and traditional divorce actions in Connecticut family court.
Mediation leaves open the possibility for a party to self-help and to engage in an activity or activities to change the status quo during the mediation process with respect to property and/or children. A bad actor can do things like unilaterally borrow large sums of money, sell or give property away, take minor children out-of-state or out-of-the-country, change insurance beneficiary designations, let insurance coverages lapse, etc. Automatic Orders protect the status quo of finances (and children), but required a formal divorce action to be filed with the Connecticut Superior Court.
While these kind of bad faith actions are, of course, unethical and improper on the part of the parties, such abuses are risks that are inherent to, and downside risks of mediation. There may be ways to try to address some of these problems in the divorce itself, but it will almost always be better to avoid the problem in the first place. There are also some problems which later simply cannot be adequately remedied. Some parties use the prospect of mediation as a delay mechanism to put their “divorce planning” into effect, while their unsuspecting spouse thinks everything is being done amicably. One spouse may even bully the other into mediation, by acting like divorce “litigation” has a stigma to it, to imply that the spouse wanting the protection of the automatic orders is the unreasonable one.
Filing a formal Divorce Action before you start Mediation will trigger Automatic Orders and all of the inherent protections in Connecticut need to maintain the status quo. Proceeding in this manner will allow you to freely move through your Mediation with the peace of mind that a safety net exists with the equitable protections that the courts provide.
If you are suspicious of your spouse’s motives, that’s a good indication you should be speaking with an attorney about what is happening and why, and planning a strategy accordingly. You do not have to forego having a divorce case pending and the protection of the automatic orders in order to mediate.
An unforeseen circumstance can also bring complete chaos and completely change the context for family decision making where the idea of the status quo protections could seem quite attractive in comparison. In the post Covid-19 world, few people will think and act the same way. Random job loss, a tragic accident, terminal illness, property loss, extreme changes in market conditions that affect the value of a key asset, can dramatically change how one might view marriage dissolution.
As amicable as you may want to make your divorce, you and your spouse have diverging interests in the outcome of the divorce. It often may be helpful (and less stressful) to have a representative who can negotiate with your spouse’s representative, so you can ensure your rights are zealously represented but you don’t have to be in the position of directly arguing with your spouse.