THE METHODS > DIVORCE MEDIATION > COMMON MYTHS ABOUT MEDIATION
MYTH #1. Mediation only works if the couples already agree on divorce issues.
Wrong Wrong Wrong! In fact it is the exact opposite! Mediation works best when there is more conflict (assuming there is not any physical abuse). When a couple is at opposite ends on every issue, going to court will usually only make matters worse. Their anger and mistrust is now coupled with loss of control over the process and any decision a judge makes will not likely be adhered to as well because the party or parties did not feel it was fair. Only when a couple is empowered to reach agreements on their own with the help of a high conflict trained mediator can the agreement feel fair and the healing can begin.
MYTH #2. All mediators are pretty much the same.
This is not true. Utah is slowly becoming a state that uses mediation more and more. As mediation becomes more popular more mediators are beginning to practice. Many attorneys dabble in mediation however there are very few that mediate full time. It is arguable as to whether there is any advantage to being an attorney. Both the attorney mediator and the non-attorney mediator must have a working knowledge of the different divorce statutes. What they do with this knowledge is very different than what an advocate attorney would do. The mediator would educate both husband and wife of the different statutes but would not advise or represent either of them. For this reason an attorney mediator would seem to have no apparent advantage. Most attorney mediators started out as litigating attorneys and try to change hats to a mediator. The profession of adversarial advocate and mediator is exactly opposite. One promotes a win-lose outcome and the other promotes a win-win outcome. For this reason many attorneys find mediation to be very difficult as it is contrary to their natural tendencies to be adversarial. Common Ground Divorce Specialists uses both attorney mediators as well as non attorney mediators.
MYTH #3 I will not have my rights represented if I mediate.
This is a scare tactic that attorneys some times use to dissuade a client from mediating. This is simply not the case. The mediators will spend considerable time educating the couple about the guidelines and statutes the courts use when making a ruling. The mediators will not be advising the couple or the individual regarding legal matters. This would compromise the impartiality, which is paramount in the mediation. The mediators will not discourage the couple from reviewing the agreement with their attorney should they choose to have legal counsel. An attorney who is pro mediation can be a great resource. It should be noted that most of the couples do not get an attorney because they educate themselves with our materials to ensure that their rights are being considered. The mediators will not put an agreement together that is not compliant with the state laws or is grossly 1 sided.
MYTH #4 Mediation is mainly for low income couples trying to save money
While we help many low-income couples seeking an inexpensive solution for their divorce, we handle equally as many middle income and high income couples if not more. The true value of mediation is not in the amount of money that the couple saves but in the quality of the agreement. Common Ground Divorce Specialists handles several high profile divorce cases including celebrities because it is a confidential process that the public is not entitled to. If cost is the most important issue to a couple they will definitely get more "bang for their buck" by using mediation but there are cheaper solutions like just trying to file the divorce yourself.
The following was taken from an article in Divorce Magazine.
Debunking mediation myths
There are many myths and misconceptions floating around out there about
mediation which discourage some couples from choosing this cooperative
method of working out the details of their divorce. We asked some experts to
debunk some of the most common myths.
By Silvia Pandolfi
Mediation is a cooperative, problem-solving process that gives couples the
opportunity to control the decisions that will affect their future.
Mediation allows couples to deal with their separation or divorce outside of
a courtroom setting, and usually is less costly -- both financially and
emotionally -- than litigation. A mediator helps you identify the points on
which you already agree, then works with you and your spouse to create
practical, informed solutions to the others.
Unfortunately, some people have heard negative stories about mediation --
they often begin: "my cousin's best friend's sister was totally ripped
off!" -- which cause them to shy away from the process. Here's what the
experts had to say about some of the most common mediation myths.
"Women do worse in mediation than men."
Genell Greenberg, MSW, Esq., has a dual background in social work and law.
She practices in Del Mar, California, where she specializes in family law
and divorce mediation. "In my experience," she says, "women are just as
successful as men at mediation. The concern that women may be at a
disadvantage arises from two myths: 'women don't know -- or they are unable
to learn -- about financial issues,' and 'women will always give in to keep
the peace.'"
Your mediator, who is an impartial professional, should create a safe
environment that won't allow either of you to get "ripped off."
Sharon Beskin-Goodman, LCSW, a therapist/mediator in Red Bank, New Jersey,
points out that mediation has never been gender-biased. "Traditionally in
the system, women feel a financial imbalance and men feel a custody
imbalance," she says. "In other words, women may have more parenting time
with the children, but proportionally less money, where as the male has less
parenting time but more of the family money."
If you mediate your divorce, both parties can be empowered. The mediator
will listen to both sides, and then he/she will help you create a fair plan
that's in your family's best interests.
"I'm intimidated by my spouse; I need a lawyer to protect me, not a mediator
who will take my spouse's side."
Beskin-Goodman says that you're the best person to look out for yourself.
After all, who better understands your needs?
"Mediation can be an empowering process," she says. "It can help the spouse
who feels intimidated gain strength through education and knowledge. The
process can also help the intimidated spouse begin to address issues and
open up a line of communication which -- especially if there are children --
is very important and will always be necessary."
Douglas Schoenberg, a mediator and lawyer in Summit, New Jersey, agrees with
Beskin-Goodman, adding that mediation can build your knowledge and
self-esteem. "Mediation is good training for dealing with your ex-spouse
after the divorce is over," he says. "In fact, mediation is good training
for everyday life."
"Mediation is for couples who want to reconcile."
According to Schoenberg, mediation is not marriage counseling. It can help
couples learn to communicate better, but it's not intended to get them back
together again. "Mediation is for people who want to move on with their
lives," he says.
Kenneth Neumann, a co-founder of the Center for Family and Divorce Mediation
in New York, has worked in the field since 1982. Neumann points out that one
of the parties in mediation may be secretly -- or not so secretly -- hoping
for a reconciliation. "But if the other party is clear about wanting the
separation or divorce, then the mediator needs to help the couple reach a
consensus," he says. Sometimes that means helping one spouse to realize that
the marriage is really over -- and to start making choices that aren't based
on being part of a couple.
"My spouse and I aren't speaking to each other. We can't possibly mediate
our divorce."
Forrest Mosten is a certified family law specialist and mediator, a partner
at Mosten & Barbakow in Los Angeles, CA, a member of the academy of Family
Mediators, and the author of The Complete Guide to Mediation. He says that
most people going through divorce have communication problems. The couple
may act out in many ways: some shut down the communication process
completely, while others act in outrage. "Mediators are trained
professionals who work with couples to maximize their communication and help
them resolve their issues," he says. "A mediator can help you move on with
your life."
"If a divorce involves complex issues, you can't use a mediator."
There are many complex issues -- legal, financial, and emotional -- that
must be resolved before a divorce can be finalized. According to Mosten,
"More and more couples who have complex financial and legal issues are
choosing mediation because they want to reduce lawyers' fees. If issues are
complex, you may also need to work with an 'unbundled' lawyer as a coach."
(Mosten explains "unbundling" as "the process of breaking down the roles a
lawyer might play into smaller groups of tasks. The client is in charge of
determining which services are to be performed by the client, which services
are to be performed by the lawyer, and the extent or depth to which the
lawyer will perform the services.")
Mosten adds: "Anything that can be decided by a judge can be worked on in
mediation -- at a fraction of the cost and time, and with less wear-and-tear
on the family."
Neumann agrees that complex issues can be dealt with in mediation, and in a
more effective manner than litigation offers. "For example, when it comes to
tax issues, couples will fight for different tax positions, never really
looking at the overall best tax strategy," he says. Neumann adds that in
mediation, most couples can often agree on strategies that allow both
parties to come out ahead financially by keeping more money in the family's
pockets rather than handing it to the government in unnecessary taxes.
"Mediation is for parties who have already divorced, and who don't have any
problems or disagreements with one another."
Mediation is a voluntary settlement process giving you the opportunity to
control the decisions that will affect your future. It's designed to help
you resolve disputes -- before, during, and even after divorce.
"Mediation isn't appropriate for people who have 'real' problems."
Of course it's appropriate: if you didn't have "real" or difficult problems,
you wouldn't need a mediator -- you'd be able to solve them yourselves.
"Women don't know -- or are unable to learn -- about financial issues, so
mediation won't work for them."
Some people (men and women) are better with numbers than others; if you're
"numerically impaired," let your mediator know that you need him/her to
explain the implications of the suggested settlement so that you can
understand it. Also, you could retain the services of an accountant or
financial planner to help you.
"Women always give in to keep the peace -- that's why they need a lawyer to
fight for their rights."
Again, some people are willing to sacrifice almost anything to avoid a
fight. If this describes you, or if there was a significant power imbalance
in your marriage, you need to let your mediator know so he/she can
compensate for it.
"If both lawyers are settlement-minded, you don't need to spend more money
on a mediator."
Mediation usually ends up saving people money: the issues you can solve
together don't have to be negotiated by two lawyers or decided by a judge in
court. Your mediator helps you create an agreement that's in your family's
best interests, then each of your lawyers looks it over before either of you
sign it. Your lawyer is there to look after your interests in the divorce; a
mediator doesn't represent either party.
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