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Posts Tagged ‘mediation’

Breaking Up is Hard to Do…

I spent last Friday in a divorce mediation.  The marriage spanned two decades; the parties have 5 kids.  By my client’s account, it was not a happy marriage, and the miracle was that it had not ended sooner.  broken heart

The agreement we mediated was about as good as it gets in terms of being a statutorily equitable split.  My client WANTS to get divorced, but she’s still very upset about the whole thing.  It’s just not really fair, even if it’s equitable. And Why?

Because it will never BE “fair.” Because she did not get married to get divorced.  Because she has 5 kids who are heartbroken and disillusioned and upset about the situation their parents are in.  Because she had planned on a Future, that didn’t include getting divorced, that may have included kids’ graduations from high school and weddings and grandkids, with all the traditions you see in an intact family.  Because at one time, she had a Dream of what life as a married person would look like.

And that Dream is dead, not to be resuscitated. No divorce settlement will ever be able to make all the pain ok or right or fix it.  Getting divorced Hurts.  Bad.  Even when it really NEEDS to happen.  Getting divorced is like running head-on into a wall.  Boom.  Turn around.  Start over.  Somehow.  And a lot of times that “starting over” is from less than Scratch.  Like, no retirement left, no job experience, kids and expenses but not enough income to pay for everything AND maintain any kind of actual life.

You’ve gotta take some time to grieve after a divorce…Maybe a long time.  Because getting divorced is the ULTIMATE break up. And we all know breaking up is hard to do.

They say time and mercy heal all wounds.  The challenge is surviving the passage of time, ya’ll.  So be gentle with your divorcing and newly divorced friends.  It’s a pretty horrific thing they’re going through.

Mediation in Divorce: Do we HAFta??

And the short answer to that, in the state of Utah, is Yes.  Now to ‘splain:

Statute governing the mediation requirement in Utah divorces is located at U.C.A. 30-3-39, aptly titled “Mediation program.”  Divorcing parties are required to engage in at least one mediation session.  You’re required to make a “good faith” effort to resolve your issues, but it’s very hard to prove that someone has NOT met in good faith…So just keep that in mind.

Refuse to Acknowledge referee

Not exactly a “good faith” effort there…

Mediation can be a fantastic way to finalize a divorce quickly.  The statistic is that something like 99.5% of all divorces are settled at mediation, so that is a motivating factor.  In my practice, I always tried to get mediation set up asap, as it’s required by the statute noted above, the court will not schedule a trial date in the case until the parties’ have mediated, and chances are good that the case can settle sooner than later–and this saves a lot of time, money, and emotional trauma.

All of the issues in your divorce can be resolved at mediation.  Do be aware, however, that the court won’t rubberstamp ALL of the things you and your spouse may agree to…Like, you can’t negotiate away child support.  Child support is a right that belongs to the kids, not the parties, so while you may try and say that no one pays child support, it won’t fly–meaning, the court won’t sign your divorce, and they’ll make you change the child support provisions in your agreement. Otherwise, you have all the flexibility you want in mediation to agree to whatever terms you choose to.  Why is this good for you?

Divorce flowchart Well, it’s also been shown that parties who choose their OWN terms of a divorce and parenting plan stick to it better than those who have an order forced upon them by the court.  You know your family and your circumstances better than a judge does.  You are really in the best position to decide what will work the best for your family.

That said, mediation is about compromise.  You will not get everything you want.  Don’t plan on that.  As I’ve said before, if one person thinks their divorce was super fair, the other person probably got screwed.  If you and the soon-to-be-ex are both represented by attorneys, no one is going to get everything they want.  And that’s a GOOD thing.

The courts website has some great information about mediation that can be found here. The page also has information about mediators to work in your county, whether they are located in your county or not, and whether they charge for travel if they are not.  I have some of my favorites, and I have links to a couple just to the right here on this blog. Mediators generally run about $100/hour and up, depending on who you use.  There are low and no-cost options if you can’t afford to pay for it, so don’t worry too much about that.

There are limited exceptions to the mediation rule.  Click on the link for the courts website (above) to find forms for getting out of the requirement.  Do know that you can’t get out of it just because you can’t stand the ex.  You’re going to have to have some honest-to-God solid-gold reason why you shouldn’t be required to mediate (domestic violence is one, btw…)

Referee needed

That just may be a good idea..

My final thoughts on this:  I NEVER had my client mediate in the same room as their estranged spouse (or significant other, as the case may be with paternity actions).  My experience is that family law is too emotionally hard to sit in a room across from the other person and be Super Reasonable–there’s too much history, too many hurts to be able to compromise much.  If you choose to be in separate rooms, the mediator can generally accommodate you.  Some really want to do it face to face.  My opinion:  If your goal is to finalize your divorce with an agreement that you can both live with, stay in separate rooms.  No need to start a brawl in the mediator’s office…

 

*P.S.  If you want to message me on my FaceBook page, I can give you my thoughts on specific mediators that I’ve used.  Not every mediator is right for every couple and circumstance.  It’s good to have a little info so that you can make the best choice for you.
*P.P.S.  And don’t forget, courts overturn mediated agreements in Petitions to Modify all the time…Just so you know…
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