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Should We Mediate Separation / Divorce or Family Conflicts or Should We Litigate?

Of course a Separation and Divorce Family Mediator believes in the process of Mediation where mediation is appropriate. The reasons are numerous, but most simply put: In Mediation, the parties control the process of dissolving their union where in litigation, the process controls the parties.

The feeling of being out of control during separation and divorce is very common. Sometimes one party feels the other party is controlling the money or the Children’s scheduling or both. A party who does not want to separate or divorce may feel a loss of control over every major decision of his or her life. This painful state often causes a party to take the step to litigation as an avoidance reaction.

If that happens then you have given control over your most important future life options to a lawyer. If so, then it is very difficult to maintain control over the outflow of legal fees. Every month, you will get a statement of how much of your retainer was used, and when it is used up, then you will have monthly legal bills to pay, which legal bills can vary from month to month. This alone can add to the feeling of being out of control of your own life.

It also means you have lost control over how information is conveyed to your spouse. Many spouses are shocked over the tone used by a lawyer in the course of the negotiations. However, litigation attorneys are professional negotiators and do not want to be instructed in their negotiation techniques. If you have selected an adversarial negotiation process, then you should expect that kind of adversarial tone. If you wish to have control over how information or legal positions are conveyed to your spouse or co-parent, come to mediation. Choose a non-adversarial process.

You also keep firm control over the content of your formal settlement agreement. Your involvement in the negotiating process will include discussions on what the actual language of the Agreement will be. That also makes you understand the terms you will have to live by. This kind of control helps you feel in control after the settlement is drafted and signed.

Mediation with Nancy Caplan also provides you with control over the scheduling of the mediation sessions. You can decide what days of work you can or cannot miss. The courts do not give great weight to the scheduling needs of the parties. This can create all sorts of problems for scheduling for work or even vacations. Also, by scheduling your mediation sessions, you will determine the outflow of mediation fees. A budget-minded party may be working very hard to avoid carrying credit card debts, and timing mediation sessions to meet that goal is in your control.

In a Separation or Divorce setting, the parties generally feel overwhelmed and stressed and litigation, and its unpredictable nature, aggravates that. If the parties are able to understand the issues in dispute, why wouldn’t parties seek to peacefully settle the sad and difficult issues they face, rather than escalate them at a huge financial and emotional cost?

In litigation, the outcome is unpredictable and frightening, relating to one or more of the issues. In mediation, the parties stay in control of their negotiations, and although there are few “great” decisions in a separation or divorce situation, there should be no shocking or unhappy surprises. Parties who negotiate their own agreements, knowingly and having fully explored the options are more likely to live up to their “end of the bargain.” After litigation there are “winners” and “losers” and very, very often, this feeds a continuation of personal conflict over some or all of those issues. The reality is that in family law matters, litigation often breeds more litigation.

Currently in Maryland, mediation is required in court matters where child custody and visitation are in dispute exactly for this reason. The sensitive nature of the issues involved in family law requires a serious consideration of a more peaceful approach to solving those disputes. Separation and Divorce Mediation in Maryland with a skilled attorney-mediator trained to resolve disputes, rather than litigation with skilled attorneys poised to win at all costs, is likely to result in an acceptable resolution for both parties.

Mediation is a fraction of the financial cost of litigation, but the emotional costs are also far fewer.

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