Divorce Mediation in Pennsylvania: Fact and Fiction
Mediation in divorce is one of the more efficient ways two parties can move through the process. Efficiency means less time spent, and that in turn translates to less money as well.
Yet, as a divorce mediator for over 20 years, I have noticed that clients often come to my office with gross misconceptions about what mediation is and how it can help them.
False perception: Mediation can work for every divorcing couple. Fact: Mediation is not appropriate in cases of domestic or emotional abuse, or useful if both parties have large reservoirs of unexpressed rage or resentment. For the majority of divorcing couples, though, it offers a thoughtful, cost-saving and humane solution to the divorce process.
False perception: The mediator, if first approached by my spouse, will be automatically skewed in his or her favor. Fact: A mediator, by definition, is someone chosen equally by both parties and required ethically and by training to serve both parties equally. All communications are shared with both parties – there is no sidebar caucusing. It is a transparent process of negotiation.
In divorce, emotions can run high, but as a mediator, I am bound ethically to help you focus on the legal issues of divorce that you both identify as your mutual goal. Think of a divorce mediator as an impartial third party, albeit one who sits with you both at the bargaining table and identifies, objectively, where you each stand on the issue being discussed. In my practice, I try to use 24 years of family law practice insightfully so that each side can see what the real options are.
False perception: The mediator will resolve issues if we cannot. Fact: A mediator has no authority to resolve a deadlock or arbitrate a solution. If the parties can’t find a solution, the matter remains unresolved when mediation ends. In divorce, your choice will then be to turn to traditional litigation. I find, though, that divorce mediation typically does result in the needed resolution of legal matters, as there are often alternative approaches or a long term view that one or both parties have not yet considered.
False perception: Some people think mediation is more expensive than traditional litigation. Fact: Mediation is a cost-saving and time-saving approach to divorce, particularly if minor children or large complicated estates are involved. Think of it this way: Would you rather pay two lawyers to negotiate or litigate your case or one mediator? There’s no mystery to the math – the fewer people paid, the better.
False perception: Divorce mediation replaces the need for each party to hire a lawyer. Fact: The divorce mediator cannot ethically represent just one party’s rights or point of view. Therefore, I ALWAYS recommend that each party CONSIDER hiring an attorney to review all documents produced by the mediation process prior to signing. However, since negotiation and litigation generate by far the highest portion of legal fees paid to an attorney, the parties are skipping to the final review process. Legal costs, if incurred, are much less.
False perception: I can keep my personal information and issues private whether I choose litigation or mediation, so it does not matter which I chose. Fact: Once two parties enter their dispute with the court, certain aspects of their paperwork will be posted to a public docket. Remember Brad Pitt and Angelina Jolie? Docket postings in California formed the basis of much media reporting on the couple’s private battles over custody.
Posting court filings publicly is the law. While Pennsylvania’s legal system has made great strides in recent years to prevent sensitive details like names and birth dates of minors or social security numbers from being publicly posted, parties to legal actions ought to take prudent steps to keep private their information and conversations.
Consider: Would you rather that notes of your conversations with your soon to be ex-spouse be limited to yourselves and one person, or yourselves and two attorneys? Both mediators and attorneys have strict ethical rules about privileged discussions. Current thinking on identity and personal information protection is it is always best to limit the exposure of such information in the first place, rather than trying to suppress or recall it after it has been disseminated to multiple sources.
Divorce mediation offers the option of completely private conversations resulting in a Property Settlement Agreement (or Custody Stipulation), which can then be filed directly with the court as a non-public document for enforcement purposes.
Divorce mediation offers a shortcut to the final goal – a fair deal, the opportunity for a respectful and humane exit and a low-visibility legal resolution.
If you think that divorce mediation can be right for you and your spouse, I encourage you to call my office at 215-345-5259 to set up a free first consult.
– Elissa C. Goldberg, Esquire