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Getting
married is easy. Staying married is not so easy. But dissolving a marriage
or unwinding a non-marital relationship can be emotionally and financially
devastating. Anger, financial fears, disappointment, and blame can cause
former lovers, parents, and spouses to turn on each other. And if it’s
hard on parents, it is worse on children who are often used as pawns in
the battle.
All too often, the only way through the process is to hire attorneys and
have an all-out war. Each side wants the meanest, toughest attorney.
But it doesn’t have to be a war with winners and losers. A better
alternative to the divorce wars is Mediation.
How does it work? It is a process by which the parties themselves
negotiate a settlement using the services of a third party neutral mediator.
The effort is to avoid the adversarial judicial process where each side
tries to defeat the other. The mediators help the parties identify possible
solutions, break large difficult problems into smaller, easier to solve
problems, and keep the parties focused on the goal of settling issues.
Mediators help level the playing field and allow the parties to feel safe
and secure enough to make or accept a settlement offer that they can live
with. Conversations, offers, and negotiations in mediation are confidential
and cannot be introduced in court in any later conflict between the parties.
The mediators do not act as judges or arbitrators and have no authority
to impose a settlement of any issue.
When a party needs legal advice to know his/her legal position, that party
is urged to obtain advice from a consulting attorney.
Why does it work? Almost all cases are settleable, and the vast
majority are settled out of court even when lawyers are involved. In most
“garden variety” cases, experienced family law attorneys can
analyze a case and offer their clients a prediction of how the case will
likely end. Furthermore, the financial and emotional cost of a long, drawn
out legal battle often beats the parties into submission, forcing them
to agree to unfavorable terms.
In mediation, the emphasis is on problem solving rather than winning and
losing. The parties are partners in the process, not contestants.
What are the advantages of mediation? It is generally faster
and cheaper than litigation. It allows the parties to make the decisions
instead of having those decisions made by a judge who never really has
the opportunity to know the parties or their needs. Parties to an agreement
often feel a responsibility to abide by the terms of their own agreement
more than they do the terms of a judgment imposed on them. Finally, the
parties can leave the process with their own dignity and respect for the
other party intact.
Who are the mediators? Parties generally meet with either an
individual mediator or a team of two co-mediators. Most solo mediators
are attorneys with substantial family law experience and mediation training.
Co-mediators are usually a team made up of a family law attorney and a
mental health professional such as a clinical psychologist or a marriage,
family, and child counselor.
Mediators are trained to diffuse the emotional entanglements that often
get in the way of settlement and which drive litigation. The mediators
do not offer legal advice, counseling or therapy. Instead they use their
professional training and experience to help parties make the decisions
and compromises needed to settle the case.
John R. Ellingson is an attorney, mediator, and member of the law firm
of Howser & Brown. He provides services as an individual mediator,
or as a co-mediator with Dr. Karen Huber, a licensed clinical psychologist
and Certified Mediator. Dr. Huber is also located in Newport Beach, California.
For further information or assistance regarding mediation, you may contact
John Ellingson by telephone at (949) 852-8500 or by email by clicking
here. |
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