Mediated Divorces: The Smart Way to Divorce

Why do so many celebrities like Tom Cruise and Katie Holmes, Kim Kardashian and Kris Humphries, and Tiger Woods and Elin Nordegran mediate their divorce? The answer is simple: their managers tell them that in addition to being private, mediation will save them a lot of time, money and aggravation by avoiding adversarial lawyers and the court system. You can do the same by seeking out services that can help mediate your Arizona divorce or legal separation.

Mediation vs. Lawyers

As a trial lawyer I saw firsthand the destructiveness that is likely to result from litigation. I saw how it drains clients emotionally as well as financially, and how it affects children and other family members. I also saw this when I was the client in my own divorce. The truth is that ultimately most divorce cases settle, but usually not before months or years of expensive, energy-draining litigation. Sadly the adage that “in lawsuits no one wins except the lawyers” is most often true. This is one of the reasons why mediation is becoming increasingly popular.
Attorneys for participants can and often do take part in the mediation process, but as consultants rather than combatants. Indeed, we welcome the involvement of attorneys in this manner, and encourage clients to consult with them with respect to any doubts they may have during mediation and certainly, before they sign a settlement agreement.

Who Makes the Decisions?

The major differences between mediation and using separate lawyers come down to this question: who makes the decisions? In the litigation process in Arizona and California with a judge, two attorneys and two participants, it’s likely to take seven to 15 months for you to get a trial courtroom and see a judge. While the judge ultimately makes the final decisions, the attorneys are in control of the decision making in the meantime. When I practiced law, I saw myself as an expert trained to make decisions for my clients. I would listen to them, but I was definitely in charge, making decisions as to how to fight for my client’s rights.
In the mediation process, it’s not the mediator’s job to make decisions for the couple. The mediator’s job is to help each of you make fully informed decisions on your own. We help you communicate and negotiate effectively, by offering you different options and alternatives for resolving whatever issues there are. We also provide legal, financial, tax, and other information. But you will make all of the decisions.

The last major difference between mediation and litigation is the effect on yourselves and your children. Having been a trial lawyer for 19 years I’m well aware that the adversarial process is likely to increase fear, tension, and hostility. When lawyers take control of a case, they typically discourage direct communication between clients. And when communication stops, fear increases. Remember that the legal system is adversarial and lawyers are trained to fight for their clients. Thus, tension and hostility are bound to increase. On the other hand, mediation is specifically intended to promote communication while reducing tension and hostility.

We go to great lengths to clearly delineate what we do and don’t do as mediators. Most people readily understand that mediators aren’t judges, deciding who’s right or wrong, or who wins or loses. Indeed, this is the very reason why many people choose mediation. They don’t want to turn over control to some outside authority or “roll the dice” on a decision made by a stranger. However, the distinction between mediator and attorney can be harder for some people to grasp. Many people are accustomed to relying on so-called experts to tell them what to do, and no matter how much we explain my role as mediator, sooner or later they forget and either ask me what they should do or seek legal advice from me.
I’ll admit that at times it’s been hard for me to resist the temptation of taking on the role of judge or attorney. Some people present for mediation in need of so much help that it sometimes seems easier, even more compassionate, to just tell them what to do. Yet knowing that we really don’t know what’s best or fair for anyone else, and that it would be arrogant to suppose that we do, we resist this temptation and let participants find their own way toward fully informed decisions.

Author Oliver Ross Mediator Written By:
Out-of-Court Solutions
8350 E. Raintree Drive, Suite A-205
Scottsdale, Arizona 85260
Office: 480-422-3475
Fax: 866-929-1985

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