I’m Michael Cohen, and I founded Michael’s Mediation, a divorce mediation practice in Lake Forest, IL. I did this because I went through a litigated divorce, and I wanted to help others by providing a more amicable and respectful way to divorce that results in a healthier outcome for their children and themselves. So, if you are considering divorce, I’m going to explain why it makes a lot of sense to talk to a mediator before hiring an attorney.
When I got divorced, I took the advice of a friend and called the divorce lawyer they used. I didn’t know, nor did I understand, that this lawyer was a “litigator”. He is a great guy and we have become friends. However, his method of divorce was through litigation. This meant court filings, progress according to a judge’s docket, decisions made by the judge that were binding where I didn’t have a voice, and continued correspondence with my spouse’s lawyer, coordinating topics that would be discussed by our lawyers in front of a judge.
All of this took time (18 months average in IL) and money ($17,000/spouse average in Illinois). Worse, my spouse and I were the tail wagging the dog. We went where the judge and our lawyers went. We just said “yay” or “nay”, but they made the decisions. If we wanted to explain to our lawyers, they listened, but also billed us. Our lawyers fought from the extremes and it seemed the judge almost flippantly chose a decision in the middle, almost always something that neither of us wanted. In the end, we spent enormous fees over an enormous time, all damaging our children because they had to share the tension of this very stressful process for a very long time.
As I sat in the courtroom hundreds of hours (I am not kidding) waiting for our 5 minutes in front of the judge where he decided our lives, I heard so many cases that were heartbreaking. What I took from this experience is that YOU DO NOT WANT TO LITIGATE YOUR DIVORCE.
Granted, in some instances, litigation is the only choice. However, rather than litigation being the default path to divorce, I think every couple considering divorce ought to first call a mediator for the following reasons:
- You Have To Mediate Your Parenting Plan Even If You Litigate.
If you have children, you will have to create a parenting plan. Let me be clear. No judge or lawyer wants to create your parenting plan because they do not know your children. In fact, they will require you to meet with a mediator to complete your parenting plan. A judge will only intervene if you cannot come to an agreement.
I have helped hundreds of couples get divorced, and I have never worked with a couple who could not work together amicably to create a healthy parenting plan for their children. With the right mediator, you will collaborate and build something that is healthiest for your children. Do not allow a judge, who knows nothing about your children, to create plans for them.
A mediator will guide you both to create a plan that is customized and healthiest for your children, and yourselves. Also, 70% of the decisions you will have to make during your divorce involve your parenting plan. If you start with mediation you can complete at least 70% of your divorce in the healthiest, most cost-effective manner. You will also find that after you complete your parenting plan, you have created a foundation for healthy communication that will allow you to also mediate your financial agreement.
2. Adding A Third Party Mediator Reduces The Tension You Anticipate.
You may not want to consider being in a session with your spouse where you have to discuss, listen and make decisions together. Emotions during a divorce are high and triggers that caused the divorce likely still exist. But you are not alone in mediation, you are with a third party neutral, your mediator. Adding that third person to the discussion, someone trained in de-escalation, hearing what is said, helping you both hear each other and guiding you both forward, changes the dynamic entirely. Think about when you might have had an argument with someone when no one else was in the room. Tension is high, voices are high, emotions are high. Now imagine a third person walking in the room. Naturally tension, voices and emotions stabilize and you each communicate much more clearly through the third person, wanting them to understand the disagreement. This is the same dynamic with mediation. Your mediator will listen to each of you, hear each of you, and help the other hear what is said without emotion. This dynamic changes everything, you will each start to collaborate in a healthy manner. I have seen it happen all the time.
3. Mediation Starts With & Finds Common Ground; Litigation Negotiates From Extreme Positions.
When you mediate, your mediator guides you through all decisions you need to make together and starts with common ground, which creates space for you both to agree, while rounding out any minor differences of opinion you may have. When you litigate, your lawyers negotiate from the extremes, which causes you and your spouse to draw lines and despise each other and your respective lawyers. It creates unnecessary tension which unfortunately carries over after divorce and impacts your ability to co-parent your children in a healthy manner for years to come.
4. Mediation Is The Least Costly & Quickest Process To Divorce.
Mediation is by far the least expensive and quickest way to divorce. First, many mediators don’t charge a retainer; all lawyers charge a large retainer (which needs to be replenished often). You can mediate your divorce for under $4-7,000 total over 3-4 months max; when you litigate, you will spend $34,000 or more over 18 months.
5. You Still Have Legal Protection When Mediating.
You ARE protected legally when you divorce. You can consult with an amicable lawyer prior to any significant financial discussions so you are informed (and a good mediator will bring them into the process at the appropriate time) and a lawyer will review your mediated agreement at the end to ensure that it is equitable. A judge will also review your agreement before approving it.
6. Mediation Minimizes Your Post-Divorce Baggage.
When you litigate, a judge will made decisions for you that you can’t make yourselves. Decisions that are imposed on you are decisions that will create stress in years to come when you have to abide by them. When you mediate, you make all of your own decisions. Decisions that you make on your own are decisions you are happy to abide by in years to come because you understand how you made that decision.
Couples often don’t value this enough during their divorce; they just want it to be over and they don’t understand it is never over. When you litigate you will be upset with the positions, language and assertions your lawyers make, you will be upset with the decisions the judge makes without full context, and you will be upset with your spouse for allowing his or her lawyer to try to take advantage of you. This emotion will last years and represents the “baggage” people carry with them after divorce for years. When you mediate, you make decisions together, you complete the process quicker and you move on into your new life with far less “baggage”.
Mediation for those Considering Divorce
Mediation is not new, but it is more prevalent now than it was decades ago. Mediation should always be your first option, before you hire a lawyer. In instances where a couple cannot be successful using mediation, they may need to hire lawyers. If you have to go that route, I would strongly encourage you both to hire amicable lawyers. In rare instances some couples need litigators, and that is what gives divorce a bad name.
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