When You Hear the D-Word, Think About the M-Word

By Doug Katz – 09/12/2022

Everybody past a certain age has experienced it.  A couple that they know is having problems and considering splitting,  All too often, the response is focused only on the emotional without any help on the as important part of helping them develop a plan for resolution.  This is not intentional, but rather having no frame of reference.  That is unless you have been through a divorce yourself and, while sometimes helpful, can also be fraught with the specifics and possibly baggage related to your own unique situation.  The best thing that you can do is know enough to help provide good possible options.  One of the most productive of which is mediation.

Before explaining why it is good, let me first explain a bit about what mediation is.  Mediation is a process that keeps the coupe in control.  Divorcing couples work through the specific parts of the split together to a best negotiated outcome with the help of a neutral mediator who helps them navigate the process.  They suggest and guide but do not decide on the specifics of a settlement.  Unlike a litigated divorce which is the option for parties who cannot decide, mediation is built on the assumption that common ground can be found for the overall good of the divorcing couple.  Neither is better or worse than the other, but that hinges on the proper use for the proper situation and many couples can benefit from considering mediation at the beginning for a couple of key reasons.

  • CONTROL – Because mediation is based in the divorcing couple working things through with each other, they still are in the diver’s seat(s) to determine the best outcome.  Not to say that attorneys are the problem if a divorce goes that way.  While there are some unsavory characters who are happy to leverage divorce friction for dollars, many are invested in a good outcome.  It is more that the parties can become more hostile when the divorce shifts away from a good negotiated alternative to a fight.  When that happens, it can take on a life of its own, which is often more encumbered by outside individuals and/or the entire prevailing rules for divorce in the couples location.
  • COST – Before I go any further with this point, I do not espouse a cost only approach, but it should be a consideration.  The good news is that aside from often getting better outcomes, mediation can and often does cost less.  While this assumes that the divorcing couple is civil enough to gain from mediation and committed to the process, mediation often takes less time and the time used usually costs less as the per hour cost of mediation is less than that of an attorney.  Admittedly, this does oversimplify, but it should help provide awareness to the money that you can save.  One important caveat is that in many states and counties, it is still highly recommended and sometimes required that an attorney review any agreements to ensure compliance with local and state law.  Even with this, mediation will generally cost less.
  • CUSTOMIZATION – Divorce, like other processes, has seen major change with the growth of technology and the availability information.  More and more couples are doing divorce their way which can range from pro se, which translated literally mean for himself, where couples do everything themselves to a divorce where the parties are fully represented by attorneys.  Mediation fits somewhere in the middle and allows the couple to get assistance on the just the issues that need some help.  This keeps them in control and helps further control costs by only spending where they need the help and minimizing the cost to do so.
  • FLEXIBILITY – Mediation does not always work.  There are just some times where the parties cannot find common ground and/or agreement and they need more engagement and help from legal professionals. The good news is that, if for some reason, mediation fails, either completely or on specific issues, a divorcing couple can always shift to a process, such as full attorney representation.
  • SPECIALIZATION – This one is especially relevant to me, so let me use this as an example.  As a specialized mediator who focuses in the real estate portion of the divorce, I generally help couples who need specific help with the home, typically the largest asset they own.  My experience in the lending world provides the perfect perspective to help the couple determine the nest and most workable disposition of any real estate.  I work with couples ranging from the aforementioned do-it-yourselfers who want some help with the home to couples involved in broader mediation as a co-mediator to specialize in the home portion.  This is just one example but you can definitely see the benefit in being able to bring in the right people for specific needs.

There a definitely more benefits to mediation than the five that I covered, but these key points clearly show how beneficial the process can be.  Unfortunately, divorcing couples knee-jerk to a lawyer up posture because they feel that they need to.  The problem is that it is very difficult to step back from that posture once the litigation road has been taken.  So before the couple crossed the Rubicon and become committed to a more costly a divisive process, they should explore mediation and I recommend that anyone who is splitting from their spouse or even knows anyone considering it should always consider the M-word when they hear the D-word.