According to the Association of Family and Conciliation Courts (AFCC), adequate preparation for divorce mediation is crucial. The AFCC notes that although mediation is a relatively informal process, one should still prepare for it as if it were an important court hearing or trial. Although there are many differences between a divorce trial and divorce mediation, the need for effective planning, information gathering, and mental preparation remains the same. Spouses preparing for a mediated divorce may need to consider tax implications, pre-negotiation agreements, and more. Spouses can start planning on their own, but an experienced divorce lawyer in South Carolina may be able to provide more targeted assistance during divorce mediation preparation. To learn more, consider contacting King Law Offices at (888) 748-KING.
Learn How Divorce Mediation Works
Many spouses are completely unfamiliar with divorce mediation before launching into negotiations. Often, spouses hear about this process for the first time when their exes suggest it. Both spouses should familiarize themselves with the basic aspects of divorce mediation before further preparation. An experienced South Carolina family law attorney at King Law Offices can explain this process in more detail.
Unlike a trial, divorce mediation occurs in private. A mediator guides these private negotiations and strives to cultivate cooperation and compromise between spouses. Before the process begins, both spouses sign agreements to keep their discussions confidential. In addition, they usually agree to approach mediation in good faith. If mediation is successful, spouses will walk away with a divorce settlement – a formal contract that contains all of their agreements on divorce-related issues. Relevant subjects generally include property division, spousal support, child support, and child custody. The process ends when a family court judge reviews the agreement during a hearing. If there are no issues with this document, the judge will approve it. At this point, it becomes legally binding.
Sign an “Agreement to Mediate”
Before engaging in this process, spouses must formally consent to mediate their disputes. They must give their consent in writing, usually in the form of a contract. This “agreement to mediate” may contain various guidelines and restrictions that spouses must follow. A common addition is a confidentiality agreement – also known as a non-disclosure agreement (NDA). This condition prevents spouses from revealing the details of their mediation sessions to anyone, and it represents one of the most notable benefits of mediation. Many spouses choose mediation specifically because of its privacy – especially if they want to keep certain embarrassing details out of the public eye. Spouses may want to review their NDA before beginning negotiations. Often, these conditions have insufficient or unclear penalties for violations.
This preliminary agreement also requires a genuine and reasonable effort from both spouses to resolve their disputes without going to court. The sample Agreement to Mediate provided by the Federal Executive Boards states that each party agrees to make a “good faith effort” when cooperating with the mediator, and to avoid “unnecessary interruptions or objections.” This condition is important, as many spouses agree to mediation with no real intention of resolving disputes. This type of behavior is called “negotiating in bad faith,” and it can waste both time and money. For example, a bitter spouse might use mediation to drag out the divorce process, stall for more time, or simply annoy their ex. The agreement to negotiate in good faith ensures penalties for anyone who attempts this misconduct, and spouses should confirm that these penalties are sufficient before beginning mediation.
How to Shift Your Mentality Before Divorce Mediation
The AFCC notes that a significant shift in mentality may be necessary for spouses approaching divorce mediation. Unlike a divorce trial, mediation is not a combative legal process. Instead of trying to “score points” or “win,” spouses should prepare to negotiate with open minds and a readiness to compromise. Flexibility is key. Stubborn spouses who refuse to consider alternatives may struggle to achieve much success during mediation.
Spouses may want to practice expressing their “needs” rather than their “wants.” Spouses might “want” a specific outcome, such as sole ownership of the family home or vehicle. A desire for such a specific outcome is inherently problematic because it leaves no room for compromise. On the other hand, spouses who learn to express their “needs” may find it easier to achieve their goals in a more flexible manner. Instead of stating that they “want” the family home, a spouse might explain their “need” for a reliable place to live. This approach promotes greater understanding between spouses and allows a wider range of potential compromises.
Engage in the Informal Discovery Process
An important pre-trial phase of divorce litigation is a process called “discovery.” During this process, both spouses strive to collect information and documentation that might be relevant to the divorce. They also have the right to request and receive evidence from one another. As long as the requested documents are relevant to the upcoming trial, spouses must honor these requests – and the court could order them to provide the evidence. Divorce mediation also includes a discovery process, but it is less formal.
Spouses approaching divorce mediation should strive to make the most of this informal discovery process. They may wish to prioritize financial documents, such as tax returns and banking statements. While mediation is not an adversarial process, spouses may still request and receive evidence of misconduct. This evidence may serve as “leverage” during negotiations, highlighting the potential consequences if the case ever goes to trial.
Prepare for Divorce Mediation With King Law Offices
Although many aspects of divorce mediation planning are straightforward, others could be more complex. Spouses who are unfamiliar with this process may be able to gain a basic understanding of mediation through online research, but these online articles often fail to provide guidance tailored to the needs of each individual family. In order to effectively plan for divorce mediation, it may be necessary to take the specific priorities and goals of each spouse (and perhaps the children) into account. To discuss these factors in more detail, consider a consultation with an experienced family law attorney in South Carolina. Continue the conversation by calling King Law Offices at (888) 748-KING today.