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If you are considering divorce, a court may be the last place you want the rest of your life to be decided, especially if you have children. Judges are very knowledgeable and are generally fine people; however, they have too many cases to decide and they can never know what is best for you and your family as well as you do.
Two primary issues in a divorce with children are who will make decisions about the children’s well-being and what the parenting time arrangements will be. Most judges do not even try, without considerable help, to answer these questions. To obtain the information they need, a judge will usually appoint a lawyer or psychologist to be a “special advocate,” to interview the parents, the children, and anyone else the parents suggest. Following this investigation, the special advocate will recommend to the judge what decision-making and parenting time arrangements are in the children’s best interest.
Special advocates, too, are very knowledgeable and are generally fine people; however, despite all their education and investigations, they are not part of your family and can never know what is best for you and your children as well as you and the children’s other parent do.
Apart from the courts’ limited ability to obtain the information it needs, there are other reasons to avoid leaving these issues to a judge. These include the fact divorce can be incredibly expensive, often five thousand to twenty-five thousand dollars, sometimes more. Usually after months of information gathering and, perhaps, negotiation between the attorneys, a typical divorce hearing will last a few hours or may take a day or two. At the end of the hearing, the judge will take fifteen minutes to an hour to sum up the years you and your spouse have spent together, divide everything you’ve worked for and accumulated, and tell you who will make decisions for your children and how much time each of you can spend with them. That hearing will likely be all the time you will ever spend with that judge. In that short period, the judge will determine many of the most important aspects of the rest of your life.
Fortunately you have another option. By mediating your divorce, you control what happens to your family, you control the process by which these decisions are made, and you decide what is best for you and your children. Additionally, you and your spouse can decide how to divide your assets, whether and how much alimony or maintenance will be paid, and how your debts will be divided.
In mediation, you and your spouse meet with an attorney or psychologist that the two of you choose together, not a judge chosen for you by the state. Your options for selecting a mediator are numerous. They are listed in the yellow pages and on the web, and are well known to most divorce attorneys. Many mediators have more experience with divorce than even many divorce judges, who are often rotated in and out of family law assignments.
The mediator’s task is to help you and your spouse negotiate an agreement concerning your children and your assets, which you will then give to the court instead of having a hearing. The mediator’s role is to remain neutral and to give you the information you and your spouse need to negotiate a good agreement. That information may include what a judge would likely do if asked to decide the issues in your divorce. Such information often helps a divorcing couple determine what is fair, and helps them avoid pursuing unreasonable goals that may be based on anger or other emotions.
Mediation usually takes much less time than most people assume. Two to five hours is often all that is needed to decide who will make decisions about the children, how parenting time will be divided, how assets and debts will be divided, and whether maintenance will be paid. Once the parties agree on these issues, either the mediator or either of the spouses’ attorneys can draft the agreement in a form the judge will accept. Many couples, in fact, do not use attorneys in the mediation process, relying instead on the mediator’s legal information or using their attorneys only to review the final documents. An important part of the control parties have in mediation is how much to use their attorneys or whether to use attorneys at all.
Mediated divorces tend to be less expensive than divorces that rely solely on attorneys and the courts. Mediated agreements are more likely to reflect the wishes of the parties than rulings made by judges or agreements negotiated by lawyers. People who negotiate their own agreements also tend to follow them more closely, resulting in less turmoil after the divorce and less likelihood they will need to return to court to resolve future disputes. Even where there is a post-divorce disagreement, parties familiar with mediation can use the process again to resolve their dispute without subjecting themselves to the courtroom process.
Competition and the legal adversarial system have been important in making America the country it is; however, for resolving disputes involving families and children, collaborative processes produce better results. Divorcing couples, particularly those with children, have a duty to each other and to their families to resolve their disagreements in the least disruptive manner possible. The courts generally do not provide this. Attorneys often do not encourage it. Mediation almost always provides a better way to resolve family disputes, including divorce.
Do yourself, your children, and your family a favor: mediate your divorce.
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