In a divorce, there is always the option for early mediation if the parties are amenable. In order to decide whether or not to mediate, it is important to know the basics of mediation in a divorce setting. It is equally important to know what to expect.
Mediation in divorce is often referred to as settlement facilitation. Settlement facilitators in divorce mediations should always be very experienced in divorce law and practice.
This means that the settlement facilitator will be either a highly experienced divorce attorney or even a retired family court judge. It would be both unwise and unproductive to use a mediator without significant experience in divorce law.
It should also be kept in mind that settlement facilitation requires a great deal of preparation on the part of the parties and their attorneys if the parties have any hope of having the process end with a marital settlement agreement. This means preparing the case so that the facilitator is fully informed of all the issues. What this means in practice is that the settlement facilitation should not be conducted until discovery has been completed. This in turn means that the parties should cooperate in the discovery process.
For a successful mediation/settlement facilitation, it is important that the parties cooperate in the discovery process. Discovery can be difficult, burdensome, time-consuming and even frustrating. However, it must be done. In fact, there are standard discovery request that go out in divorce and family law proceedings. The questions and the request for production of documents are standardized. They may seem overly intrusive, but they required by the courts.
Assuming the parties cooperate in discovery, and the discovery process has been completed, it is time to consider settlement facilitation. It should be kept in mind that the courts in New Mexico will order parties to settlement facilitation prior to any trial settings. There is even an opportunity for a free settlement facilitation once a year in Albuquerque‘s Second Judicial District during settlement week.
However, assuming the parties can afford to pay for a settlement facilitator between them, it is generally best to move forward with the settlement facilitation as soon as possible. Settlement facilitations are largely successful. However, it is important to understand what is meant by “successful.”
Successful means that the parties are able to come to an agreement on all or most of their issues. This means they come to an agreement on child custody, child support, the division of property and debt, alimony, and other issues (both large and small) involved in the divorce.
It is important for the parties to both keep their expectations in check. “Successful” does not mean that you will walk away happy. It does not mean that you will get everything you want. To the contrary, it is often said that a successful mediation or settlement facilitation ends with both parties unhappy about the outcome. This may be a slight exaggeration and might be better stated that both parties must generally compromise significantly on their ideal outcome.
Having said that, the success of settlement facilitation can also be measured in other ways that, with time, will take the sting out of the initial compromise. Successful settlement first and foremost ends the marriage and with it, the divorce process. It does so in the most non-adversarial manner possible. It takes a potentially explosive situation and brings it to a close.
In so doing, settlement facilitation minimizes the stress, frustration, time and attorney fees and costs to the parties (and their children). It is the best option in most cases and should not only be considered, it should be considered as early as possible. In the end, most are very happy that did it.