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A Smarter Way to Divorce? by Marvin L. Schuldiner, MBA

Although unfortunate, it remains a fact that about half of all marriages do not last until the death of one of the spouses. With that many marriages ending in divorce, it has created a large burden on the court system and the participants. But an alternative to a court litigated divorce is available that is quicker and less expensive: mediation.

The term mediation engenders a lot of confusion. Many people think it is the same as arbitration (where a non-judge makes decisions for the parties), but it isn't.

Mediation is a process where an impartial third party helps guide parties (spouses) in a dispute to come to a mutually acceptable solution. Through asking questions, facilitating discussion and analyzing financial data, a mediator will guide a dissolving couple to agreements in areas of parenting, equitable distribution of assets and liabilities, alimony, child support and other issues pertaining to the marriage.

Mediation is built on two foundations: it is voluntary and both parties retain the right of self-determination. Any party can stop at any time. Plus, mediation is confidential. Any information divulged and used during the mediation cannot be used for any other purpose outside of mediation.

Mediators are not judges or arbitrators. Mediators do not make decisions for the parties. Only the parties make decisions for themselves. The parties always retain the right to agree or disagree to various elements. Mediators do not give legal advice. Mediators are neither therapists nor counselors.

Parties lose no rights by going through mediation. If no agreement is reached, litigation is still available and everything said in mediation is confidential. Through the mediation process, parties always have access to legal advice from their attorney, as well as access to any other professionals needed. In fact, 99% of divorce cases in NJ are not ultimately heard by a judge, but the costs of using the court and paying attorneys for everything are still the same.

So, why mediate?
-- Control of the outcome remains in the hands of the parties, not in an overworked judge or overzealous attorney
-- The parties agree to the outcome versus having one imposed by a judge
-- The costs of a mediated divorce are typically less than half than a litigated divorce
-- Mediation allows for creative and collaborative solutions that work best for the parties as opposed to more formulaic solutions imposed by courts
-- Mediation is quicker to attain a final divorce decree than going through the regimented process of the court
-- For instance, in NJ, mediation takes 8-13 hours over a few months versus 12 to 24 months in court
-- Allows parties to move on with their lives
-- Outcomes of mediation are always fair and reasonable since the parties voluntarily agreed to them
-- Mediation is confidential, whereas in a litigated divorce, the parties' financial records are open to scrutiny by a court
-- There are many items that get renegotiated after the divorce is final, such as child support or alimony in changed circumstances, which is easier to do if the original decree was negotiated through mediation versus an imposed court decision
-- Perhaps most importantly, dissolving a marriage through mediation is easier on children than a litigated divorce

Litigating a divorce is akin to a war. Every war has its casualties and high costs. In every war, both sides suffer damage and injuries. If there are children involved, they tend to become collateral damage. Mediation avoids all of this.

Feel free to contact me if you have any questions on mediation.

Marvin L. Schuldiner is a practicing professional mediator in New Jersey and New York who has extensive experience with family and commercial mediations. He received his mediation training at New York University and from the NJ Assoc. of Professional Mediators. Mr. Schuldiner is a mediator at the New York Court System and the BBB. He holds an MBA from Michigan State and a BS in Engineering from Rutgers. Mr. Schuldiner can be contacted at http://www.sannsmediation.com

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