If you and your spouse are in agreement that your marriage is over and you simply need some guidance to make decisions regarding a settlement of your divorce, then mediation might be a good option for you. Mediation can be used as an alternative to litigation, but can also be used as an accompaniment to litigation. In order to begin the mediation process, you simply have to contact a divorce mediation service or a private mediator and schedule an initial appointment. You and your spouse can attend mediation with or without attorneys. Keep in mind, though, mediators do not represent either party and must remain neutral. Therefore, it may be a good idea to have representation present at mediation with you in order to ensure that you fully understand the law and the impacts that different scenarios might have on you if they were to be incorporated into a final resolution of your matter.
Here are some things to think about when you are hiring an attorney to represent you in a mediated divorce:
1. Are you hoping to resolve your matter through mediation prior to filing a complaint for divorce?
Many people wish to resolve their matter entirely prior to filing the Complaint for divorce with the Court. This is often because once you file a Complaint, you are on the Court’s radar and therefore are bound by the schedule the Court dictates. By doing mediation prior to filing, you will be able to file the Complaint and then simply put the divorce through. Something to keep in mind, however, is that the date of filing of the complaint is the date that determines when each spouse’s rights in the other’s property terminates. So, if you do not have a prior agreement that the termination date is going to be the date of the first mediation session, your spouse may continue to have rights accrue during the mediation process. This may be an issue if your mediation process continues for many months. Many individuals, especially those represented by counsel during mediation, are willing to sign agreements establishing an earlier termination date in order to avoid this issue.
2. Mediation versus Collaborative Law
When you are hiring an attorney to represent you in a mediation, it is important to read your retainer agreement and be certain that you are hiring them for mediation purposes, or more generally for representation in your divorce. Another option is what is known as a collaborative divorce, which is a group of attorneys, financial planners and/or accountants, and perhaps mental health professionals, who work together to reach a resolution. However, it is important to know that if the collaborative process does not work out, neither you nor your spouse can continue with your current representation. You will have to retain a new attorney to either attend mediation or begin the litigation process.
3. Cost of Mediation with Counsel
Keep in mind that when you attend mediation with an attorney, you will need to pay your attorney’s hourly rate and likely share the mediator’s hourly rate with your spouse. This may be beneficial because if everyone is represented and is fully aware of the law and the impacts it may have on a final resolution, you may be able to resolve the matter very quickly. However, if mediation is becoming adversarial and you are not making progress, it can become a very pricey experience. You may want to evaluate if it is worth pursuing further or if there is another route to take.
If you are considering a divorce and would like to discuss potentially attending mediation with one of the DeTorres & DeGeorge attorneys, call 908-284-6005 to schedule a consultation.