Wednesday, February 4, 2009

Do Both Parties Have to Agree to Use Divorce Mediation? by Robin Seigle, J.D., Director, NCRC Divorce Mediation Services

In order for a couple to use NCRC's Divorce Mediation Services, which are private and confidential, both parties have to agree to use the service. NCRC cannot force anyone to come to mediation.

Occasionally, a Family Court Judge, with agreement by the parties' attorneys, will send a case to NCRC for mediation. Otherwise, everyone else who attends a mediation session does it voluntarily.

Examples of situations where one party does NOT want to come to mediation and strategies for addressing them :

Issue 1: Where one party does not want the divorce at all, he or she doesn't want to make it easier for the other party to get the divorce.

Strategy 1: A person can get a divorce even if the other person does not want it, i.e. they both don’t have to want the divorce, in order for one of them to get it. If the case goes to court, rather than mediation, the person who doesn’t want the divorce will likely be put into an adversarial situation where the opportunity to demonstrate cooperation is more difficult or non-existent. Neither person has control over the timing of court hearings and less control of the decisions.
In mediation, both parties have a role in determining the timing of the process, as well as the outcome. When they are able to work together cooperatively, it might lead the person who wants the divorce to “re-think” whether divorce is the preferred outcome.

Issue 2: Where one party doesn't want to spend the money.

Strategy 2: Mediation is much less costly than a litigated divorce. Generally, mediation costs between $2000 and $5000 total (shared by the parties). If one person is concerned about spending money, the other party can agree to pay for the first session and if at that point the other person agrees to continue, they can agree to share the costs. Or, one person pays for the mediation and it can be equalized through the division of property in the settlement.

Issue 3: Where one party feels that the other has an advantage over him/her due to having more knowledge or more ability to speak up and negotiate for him/herself. Sometimes one party does not feel comfortable attending mediation witout the assistance of an attorney.

Strategy 3: Where there are information or personality style imbalances, the person who feels disadvantaged can do what it takes to bring him/herself up to the level of the other person. They can do so by seeking out advice from experts (attorneys, financial planners) outside of mediation or by bringing those consultants with them to the mediation. NCRC allows parties to bring attorneys with them to mediation as long as the other person does not object.

Issue 4: Where there is a history of domestic violence and one party is afraid of the other.

Strategy 4: Mediation requires both parties to speak up for themselves and make decisions based on their assessment of their respective best interests. If someone is afraid of another party and makes decisions because of that fear, mediation is not the best place for them. We never want anyone to agree to something because they are afraid not to agree.

So even though NCRC cannot “force” someone to come to mediation, we can help you strategize how to get them to agree to try it.

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